Southern Ry. Co. v. Harrison

• Decision Date: 05 November 1898
• Citation: 24 So. 552,119 Ala. 539
• Parties: SOUTHERN RY. CO. v. HARRISON.
• Court: Alabama Supreme Court

24 So. 552

119 Ala. 539

SOUTHERN RY. CO. v. HARRISON.

Supreme Court of Alabama

November 5, 1898

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Action by Nellie P. Harrison against the Southern Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This action was brought to recover damages alleged to have been caused by reason of the refusal of the defendant to deliver to the consignee, plaintiff's agent, at Birmingham, two carriages delivered to the defendant as a common carrier, at Atlanta, Ga., to be delivered at Birmingham, Ala., for a certain agreed freight charge of $24; the defendant refusing to deliver the same at the place of delivery, unless the plaintiff should pay $32,-eight dollars in excess of the agreed freight charge. The defendant pleaded the general issue, and, among others, the following special pleas "(4) The defendant, for further answer to the complaint says that the said carriages were received from the plaintiff, Nellie P. Harrison, to be carried by the defendant, as a common carrier, from Atlanta, Georgia, to Birmingham, Alabama, over the defendant's railroad,-the same to be delivered to the plaintiff, or to her husband and agent, J. M. Harrison; that at the time the said goods were received a contract was made and entered into by and between the defendant and the plaintiff, for the transportation of said carriages, in the state of Georgia, in the city of Atlanta, in said state, where said goods were received, and the point from which they were to be shipped and transported that the defendant then and there, at the time of said contract, had duly established and published its rates fares, and charges and classifications of freight in force on defendant's road, and other matters, according to the requirements of the act of the congress of the United States entitled 'An act to amend an act entitled an act to regulate commerce; approved February 4th, 1887,' and which is found on pages 855 to 863 of the United States Statutes of 1888-89, commonly known as the 'Interstate Commerce Law'; that according to such published rates charges, and classifications, the defendant had no right or authority to charge, demand, collect, or receive from the plaintiff a greater or less compensation for the transportation of said property, or for any service in connection therewith, than such as were specified in such published schedule of rates, fares, and charges then in force, to wit, the classification of said freight should have been 'double first-class,' instead of 'one and one-half times first-class,' and the freight rate on said carriages $1.28 on the one hundred pounds, instead of 96 cents on the one hundred pounds, as was in fact charged the plaintiff, but that nevertheless the defendant's agent at Atlanta, in violation of said law, and contrary to said published rates, charges, and classification, through inadvertence or mistake, wrongfully agreed to charge the plaintiff the lesser rate for the transportation of said goods, viz. 96 cents on the one hundred pounds, and wrongfully and by mistake classified said freight as 'one and one-half times first-class,' instead of 'double first-class.' And defendant says that the said contract of carriage was a Georgia contract, and to be construed by the laws of the state of Georgia, and that under and by the laws of the said state of Georgia a common carrier who has complied with the terms of the interstate commerce act above quoted, in respect to publishing and establishing its schedules of rates, classifications, and charges, is not precluded from collecting from a shipper the full rates because by mistake a less rate was named to him by the carrier at the point of shipment, and also inserted in the bill of lading signed both by the carrier and the shipper, and that on discovery of the mistake by such common carrier after the shipment, but in time to correct it at the point of destination, such mistake may then be corrected by the exaction of the full schedule rate, and payment of the same by the shipper, as a condition to surrendering the goods to him; the transportation being fully completed. And defendant says that after said carriages arrived at Birmingham it was discovered that there had been made a mistake in the classification and rate as above stated, and that plaintiff was so informed, and the defendant offered to deliver the said carriages to the plaintiff, or to her agent, upon her paying therefor the lawful freight which should have been charged and contracted for upon a proper classification thereof, but that the consignee refused to make such payment, and left said carriages in the possession of the defendant for a long time; and defendant avers that while the carriages were in its possession it preserved the same with due care, and that the same did not materially deteriorate in value while in the possession of defendant, and that the action of the defendant in the premises was legal and right. (5) The defendant, for further answer to the complaint, says that the plaintiff should not have and recover of the defendant in this cause, because the defendant says that prior to the commencement of the action the defendant delivered to the plaintiff the said two carriages described in the complaint; the plaintiff paying therefor to the defendant, voluntarily, the rate and amount of freight charges which had been agreed on, to wit, 96 cents per hundred pounds, which amount the defendant received from the plaintiff, and did then and there deliver the said carriages to the plaintiff, who has ever since then been in the absolute possession, control, and enjoyment of the same. And defendant says it withheld said carriages from plaintiff from February 23, 1896, until, to wit, August 11, 1896, as stated in the complaint, in good faith, because it was advised and believed that it had the legal right to charge for the carriage of the same $1.28 per hundred pounds, instead of 96 cents per hundred pounds for the transportation of the same, and only in order to secure the payment by the plaintiff of said larger amount, but that the defendant finally agreed and consented to deliver the carriages to the plaintiff on his paying the said charge of 96 cents per hundred pounds, which plaintiff on said August 11, 1896, agreed to, paid the money, and received the carriages, as aforesaid." To the fourth plea the plaintiff demurred upon the following grounds: "(1) For that said plea does not show that said alleged rates of freight were posted at the depot or station of defendant at said city of Atlanta, Georgia. (2) For that said plea does not show that the shipper of said carriages knew of said alleged rates established by said interstate commerce commission. (3) For that said alleged interstate commerce commission, under the allegations of said plea, is given legislative powers, in violation of the constitution of the United States. (4) For that said alleged interstate commerce commission has no power to fix or establish the rates of freight of a common carrier, any act of the federal congress to the contrary notwithstanding. (5) For that said alleged interstate commerce commission is void, in that there is delegated to it legislative powers, which alone can be exercised by the legislative department of a government. (6) For that said plea shows that said alleged contract of shipment was to be completed and performed in the state of Georgia. (7) For that the enforcement and validity of said contract of shipment was and is governed by the lex fori, and not the lex loci of said contract. (8) For that said plea does not show that the plaintiff was in pari delicto in making said contract of shipment. (9) For that said plea does not show that the plaintiff has no right to enforce said contract of shipment. (10) For that said plea does not show that said contract was in violation of a statute of the state of Georgia. (11) For that said plea shows that the plaintiff was not in pari delicto in making said contract, and that under the construction of said interstate commerce law by the supreme court of Alabama the plaintiff has a right to enforce said contract in this forum. (12) For that it is against public policy and would be dangerous to the rights of property and the liberties of the citizens of Alabama, to extend to the state of Georgia the comity of enforcing or recognizing the construction of any law by its courts." To the fifth plea the plaintiff demurred upon the following grounds: "(1) That said plea is no answer to said complaint. (2) For that said plea neither traverses nor confesses and avoids the allegations of said complaint. (3) For that said plea shows that the defendant seeks to take advantage of its own wrong. (4) For that said plea shows that the defendant wrongfully detained said carriages from the plaintiff, to wit, the 23d day of February, 1896, until, to wit, the 11th August, 1896, unlawfully, and in violation of its duty to the plaintiff." Each of the demurrers to these pleas was sustained, and issue was joined on the plea of the general issue.

Upon the trial of the cause the plaintiff offered in evidence the original bill of lading issued to the plaintiff by the defendant. This bill of lading or shipping ticket was given for the transportation of the carriages described in the complaint, by the defendant's agent at Atlanta, Ga February 20, 1896. Plaintiff testified that the carriages were received by the defendant railway company on said date at its depot in Atlanta, Ga., for shipment and carriage to Birmingham, Ala., there to be delivered to the plaintiff as consignee, and that the rate of freight or charge for carrying said goods as therein stipulated, to wit, 96 cents, was agreed by and between the plaintiff and defen...