Southern P. Co. v. Frye & Bruhn, Inc.

• Decision Date: 26 September 1914
• Docket Number: 11730.
• Citation: 82 Wash. 9,143 P. 163
• Court: Washington Supreme Court
• Parties: SOUTHERN PAC. CO. v. FRYE & BRUHN, Inc.

143 P. 163

82 Wash. 9

SOUTHERN PAC. CO. v. FRYE & BRUHN, Inc.

No. 11730.

Supreme Court of Washington

September 26, 1914

Department 1. Appeal from Superior Court, King County; E. K. Pendergast Judge.

Action by the Southern Pacific Company against Frye & Bruhn Incorporated. Judgment for defendant, and plaintiff appeals. Affirmed.

Peters & Powell, of Seattle, and Wm. D. Fenton, Ben C. Dey, and Kenneth L. Fenton, all of Portland, for appellant.

Higgins & Hughes, of Seattle, for respondent.

ELLIS J.

The plaintiff is a common carrier engaged in interstate commerce. The defendant is a corporation engaged in the manufacture of packing house products at Seattle, Wash. The action is in two counts, under the act of Congress to regulate commerce, approved February 4, 1887, to recover money paid by the plaintiff to the defendant which the plaintiff claims was, in effect, an illegal rebate on the legally established freight rates. The first count declares on a shipment of sheep which moved from Delano, Cal., to Seattle, Wash., on April 22, 1909, and demands $255.09, with interest; the second on a shipment of sheep from Olig, Cal to Seattle on May 13, 1909, and demands $158.50, with interest. Both shipments were consigned and delivered to the defendant at Seattle. At the time of the shipments the plaintiff's live stock tariffs over its lines from California points to Portland, Or., published and filed with the Interstate Commerce Commission as required by the act under the heading 'double deck cars,' provided:

'Shipments of sheep, hogs, goats, and calves, when loaded in double deck cars, will be charged for at 170 per cent. of the rate provided for single deck cars of same length. If company cannot furnish double deck equipment, and shipments move in single deck cars, the rates provided for the latter will be charged.'

The defendant, through its agent at the points of origin, ordered double deck cars for both shipments in order to get the benefit of the lower rate. The plaintiff, however, loaded the sheep into single deck cars and charged and collected from the defendant, over its protest, the rates for such cars. On July 17, 1909, the defendant filed a claim with the plaintiff for the excess as an overcharge. On January 15, 1910, the plaintiff refunded the difference. It brought this action for the amounts so refunded, claiming an undercollection of the legal rate in those amounts. By answer and stipulation as to certain facts, the allegations of the complaint were admitted, except that the defendant denied that there was any amount due on the shipments, denied that the shipments in single deck cars and the original freight payments were made otherwise than under protest, and denied that the refund was made otherwise than in rightful settlement of its claim. At the trial by permission of court the defendant interposed a further affirmative defense, to the effect that, on May 1, 1912, the Interstate Commerce Commission, in the case of Carstens Packing Company v. Southern Pacific Company, cause No. I. C. C. 3613, held the tariff in question unreasonable, and that when double deck cars are ordered only double deck rates should be charged even though single deck cars were furnished; that because of the voluntary payment by the plaintiff, the defendant abandoned any steps toward making application to the Interstate Commerce Commission for reparation; that the two-year statute of limitations prescribed for such application has expired, and it is now impossible to obtain such reparation from that body. By permission of the court this affirmative matter was deemed denied. We shall not attempt a detailed statement of the evidence, further than to say we deem it sufficient to establish the following facts: That double deck cars were ordered by the defendant and single deck cars were furnished for the convenience of the plaintiff; that at the time the shipments were made there was an agreement between the defendant and the assistant general freight agent of the plaintiff at Portland that, if the single deck cars were accepted, the plaintiff would protect the double deck rate; that at the time of these shipments there were many double deck cars within 700 or 800 miles of the points of shipment, which could have been procured to fill the defendant's order, and that it was customary for railroads to move cars a much greater distance than that to supply orders. On the contracts of shipment themselves there was a notation of the fact that double deck cars were ordered and single deck cars were furnished for the convenience of the railroad company. Depositions were introduced showing the number and location of double deck cars in the state of California at the very dates of these shipments belonging to roads of the Harriman System of which the plaintiff's road is a part. These show that on April 22, 1909, there were nine of these double deck cars located at points from 50 to 550 miles of Delano, the point of origin of the first shipment, for which seven double deck cars were ordered, and that on May 13, 1909, the date of the last shipment, there were five double deck cars located at points from 50 to 350 miles from Olig, Cal., the point of origin of the last shipment, for which four double deck cars were ordered. It appears that these cars were loaded for other shippers on that day at other points, but the evidence clearly shows that there were many double deck cars belonging to the Northern Pacific Railroad Company at Portland, Or., which could have been secured to fill defendant's orders. That the filling of these orders with the required double deck cars was neither impossible nor impracticable, nor in fact a thing unusual under such circumstances in practical railroad operation, was too well established to admit of serious question. The trial court made no formal findings of fact, but entered a judgment dismissing the plaintiff's complaint and awarding the defendant its costs. The plaintiff has appealed.

The appellant's argument and the authorities which it cites are directed to the following general propositions:

(a) That under the act to regulate commerce, a positive duty is imposed upon the carrier to collect, and upon the shipper to pay, the lawful tariff rate. This proposition is amply sustained by the following decisions: Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047; Gulf, Colo. & Santa Fé R. Co. v. Hefley, 158 U.S. 98, 15 S.Ct. 802, 39 L.Ed. 910; Texas & P. Ry. Co. v. Mugg, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011; Texas & P. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann. Cas. 1075; Blinn Lumber Co. v. Southern P. Co., 18 Interst. Com. Comn. 430.

(b) That although an erroneous quotation or misstatement of a rate is made by an agent or officer of a carrier, the published rate on file with the Interstate Commerce Commission is the only lawful rate, and must be paid by the shipper and collected by the carrier. This is amply supported by most of the decisions above cited, and also the following: Poor Grain Co. v. C., B. & Q. Ry. Co., 12 Interst. Com. Comn. 418; Forster Bros. Co. v. Duluth, etc., Ry. Co., 14 Interst. Com. Comn. 232; Baldwin, etc., Co. v. Columbia Southern Ry. Co., 58 Or. 285, 114 P. 469; Savannah, Florida & W. Ry. Co. v. Bundick, 94 Ga. 775, 21 S.E. 995; St. Louis, I. M. & S. Ry. Co. v. Wolf, 100 Ark. 22, 139 S.W. 536, Ann. Cas. 1913C, 1384; Schenberger v. Union P. R. Co., 84 Kan. 79, 113 P. 433, 33 L. R. A. (N. S.) 391.

(c) That every contract or agreement under which a shipment is moved impliedly includes the terms of the act to regulate commerce, and anything in such contract or agreement contrary to that act is void in that the parties contract with reference to the law. This proposition is supported by the following decisions: N. Y., N.H. & H. R. Co. v. Interstate Commerce Com., 200 U.S. 361, 26 S.Ct. 272, 50 L.Ed. 515; Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681; Chesapeake & Ohio R. Co. v. Standard Lumber Co., 174 F. 107, 98 C. C. A. 81; Southern Ry. Co. v. Harrison, 119 Ala. 539, 24 So. 552, 43 L. R. A. 385, 72 Am. St. Rep. 936; Raleigh & G. R. Co. v. Swanson, 102 Ga. 754, 28 S.E. 601, 39 L. R. A. 275; Bullard v. Northern Pacific R. Co., 10 Mont. 168, 25 P. 120, 11 L. R. A. 246; Fitzgerald v. Fitzgerald, etc., Co., 41 Neb. 375, 59 N.W. 838; Fitzgerald v. Grand Trunk R. Co., 63 Vt. 169, 22 A. 76, 13 L. R. A. 70; Fisher v. Great Northern Ry. Co., 49 Wash. 205, 95 P. 77.

From these propositions the appellant concludes that the arrangement or understanding between the respondent and the agent of the appellant to protect the rate quoted and relied on by the respondent did not and could not relieve the carrier of its legal duty to collect, or the shipper of its legal obligation to pay, the lawful tariff rate. It is obvious that every one of the foregoing propositions may be conceded, and yet the conclusion will not follow, unless the rate quoted, and which the agent agreed to protect, was an unlawful rate. The appellant's action is based upon the assumption that the agreement to protect the double deck rate and the payment of the refund were illegal; that is, that the original single deck rate collected, and not the double deck rate, was the true tariff rate. If this assumption is incorrect, the judgment must be affirmed. Our inquiry must start with the contrary assumption. In the absence of evidence that a contract rate is unlawful, the contract is assumed to be valid.

'An agreement may involve some matter or purpose which is illegal, and therefore renders it void of legal effect as a contract. The general presumption of law in favor of validity, casts the burden of establishing illegality as a

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