Southern Ry. Co. v. Buckeye Cotton Oil Co.

• Decision Date: 11 July 1921
• Docket Number: 21862
• Citation: 126 Miss. 562,89 So. 228
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY CO. IN MISSISSIPPI v. BUCKEYE COTTON OIL CO

89 So. 228

126 Miss. 562

SOUTHERN RAILWAY CO. IN MISSISSIPPI v. BUCKEYE COTTON OIL CO

No. 21862

Supreme Court of Mississippi

July 11, 1921

1. CARRIERS. Neither estoppel, ignorance, nor mistake can defeat Interstate Commerce Act and State Railroad Supervision Act as to discrimination and preferences; demurrage charges collected in excess of published tariffs may be recovered by shipper.

A strict adherence to the published rates and charges including demurrage charges, by railroad common carriers, is essential to avoid discriminations and preferences between shippers, and neither estoppel, ignorance of the shipper, nor mistake of the carrier's agent can defeat the provisions of the Interstate Commerce Act and the Railroad Supervision Act of this state prohibiting discriminations, and requiring that the shipper must pay and the carrier must collect only the legal published rate therefore where a railroad carrier as a part of interstate as well as intrastate commerce has collected demurrage charges from a shipper in excess of that authorized by its published tariffs on file with the Interstate Commerce Commission and the State Railroad Commission, such excess demurrage charges so collected may be recovered from the carrier by the shipper.

2 DISCOVERY. Discovery may be had against corporation without joining officer thereof.

The equitable principle that discovery cannot be had against a corporation without joining as codefendant with such corporation the secretary or some other officer thereof, for the reason that a corporation cannot make an answer under oath, nor be liable for perjury, has no application in this state since the reason on which said principle is based was abrogated by our statute (section 585, Code of 1906; section 345, Hemingway's Code), providing, among other things that the answer of a corporation shall not be under seal, but shall be sworn to by some general officer of the corporation for under the statute an officer answering for his corporation would subject himself to a prosecution for perjury for making a false oath.

3. DISCOVERY. Bill against railroad common carrier held not demurrable as seeking discovery of published tariffs.

A bill in equity by a shipper against a railroad common carrier, alleging that during a certain period named in the bill the shipper paid the carrier a sum of money as demurrage charges, which had been, collected by the carrier from the shipper in pursuance of the former's published tariffs on file with the Interstate Commerce Commission and the State Railroad Commission and the average agreement made between the parties in pursuance of the authority in such tariffs; that such demurrage charges were collected in violation of such tariffs and average agreement, in that the carrier collected demurrage charges on cars consigned to the shipper before such cars reached the line of railroad of the carrier, as well as other violations of such tariffs and agreements; that the shipper failed to keep a correct record of such demurrage charges so paid, and what records it had kept had been lost or destroyed; that the carrier had in its possession a complete record, giving a history of each item of such demurrage charges paid; and praying a judgment for such overpaid charges and discovery by the carrier of such records kept by it---on demurrer is not subject to the objection that it seeks discovery of the published tariffs of the carrier on file with the Interstate Commerce Commission and the State Railroad Commission; the discovery feature of the bill being to have the carrier discover the facts and circumstances attending the collection of each item of demurrage charged, so that it may be properly determined whether the same had been legally collected or not.

4. CARRIERS. Discovery. Bill for demurrage and discovery held not demurrable as failing to state cause of action.

And such a bill on demurrer is not subject to the objection that it does not state a cause of action for discovery and for the recovery of any demurrage charges paid by the shipper to the carrier in excess of those fixed by the published tariffs of the carrier on file with the Interstate Commerce Commission and the State Railroad Commission and the average agreement entered into between the shipper and the carrier by authority of such published tariffs.

HON. G. E. WILLIAMS, Chancellor.

APPEAL from chancery court of Leflore county, HON. G. E. WILLIAMS, Chancellor.

Suit by the Buckeye Cotton Oil Company against the Southern Railway Company in Mississippi. From a decree overruling a demurrer to the bill defendant appeals. Affirmed and remanded.

Affirmed and remanded.

Gardner, McBee & Gardner, for appellant.

The first ground of demurrer is: "Because the defendant is a corporation and the bill does not join the secretary or some other officer of the defendant company, as a codefendant." Examination of the bill, will reveal that the above ground is true in fact. We submit that it is well taken. On this ground we submit and cite: Virginia & Alabama Mining & Mfg. Co. v. McHale & Co., 9 So. 256; 1 Pomeroy's Equity Jurisprudence, 199; note to Terrell v. Southern Railway Co., 29; A. & V. Cases, page 908.

The second ground of the demurrer is: "Because the answer may subject the defendant to penal consequences." The certified schedules covered by the agreement in the record are the schedules of the Interstate Commerce Commission. The giving of a rebate in any guise whatever is a violation of law, and is penalized by the Federal Law. 4 F. Stat. Anno. (2 Ed.), page 440. Other grounds of demurrer are as follows: "Because the discovery is immaterial to the purpose of the suit; because the complainant has a plain, adequate and complete remedy at law; because the complainants are not entitled to the relief sought, or any other relief; because there is no equity on the face of the bill." By its bill filed in this cause, the appellee seeks the aid of a court of equity to recover an involuntary payment.

Prior to the adoption of the Interstate Commerce Act, it was necessary for it to allege that it did not know, but that it relied upon the statement of appellant as to the correctness of these bills presented to it, and which statements the railroad company knew to be false. In order for him to obtain the discovery prayed for, it must appear that the appellee has no knowledge of the facts.

A bill for discovery cannot be maintained where it appears that the complainant has full knowledge of matters as to which discovery is sought McKee v. Coffee, 58 Miss. 653, 18 C. J. 1059; 14 Cyc. 313. But the appellee cannot now be heard to say that it did not know the correct amount, because it is conclusively presumed by the law to know it. All shippers or passengers are charged with notice of the schedules of rates, fares, charges and regulations duly published and on file with the Interstate Commerce Commission.

. . . .

"A passenger's and shipper's knowledge of the scheduled rates and fares is conclusively presumed, and actual want of notice of the schedule is no defense to an action for the lawful rate." Roberts Federal Liability of Carriers, 460; So. Ry. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; L. & N. R. R. Co. v. Maxwell, 237 U.S. 94, 59 L.Ed. 853.

The word "rate," as used in the Interstate Commerce Acts, means the net amount the carrier receives from the shipper and retains. U. S. v. Chicago & A. Ry. Co., 148 F. 646-647.

"The provision of the Interstate Commerce Act requiring rates for the transportation and for the receiving, delivering, storing or handling of property by an interstate carrier to be reasonable, and prohibiting discrimination, are sufficiently broad to cover demurrage charges." Michie v. N. Y. & H. R. R. Co., 151 F. 694-695.

A strict adherence to the published rates and charges is absolutely essential to avoid discriminations and preferences between shippers, neither estoppel, ignorance of the shipper or a mistake of the carrier's agent can defeat the prime purpose of the law that the shipper must pay and the carrier must collect the lawful published rate. Hence an erroneous quotation of a rate by an agent of a carrier to a prospective patron binds neither shipper nor carrier, as both are presumed in law to know the correct rate. Roberts Fed. Liability of Carriers, 467; Ill. Cent. R. R. Co. v. Henderson Elevator Co., 226 U.S. 441, 57 L.Ed. 290; Armour Packing Co. v. United States, 209 U.S. 57, 52 L.Ed. 681.

By reason of the decisions, we say that the allegations in the bill that the appellee did not know the facts, and has not the information, and did not keep any records, must be, in passing on this demurrer, disregarded because it cannot be heard to say that it did not know.

The bill seeks to recover back what it has paid in, but, such amount is not the measure of its recovery. If it recovers at all, it must recover the amount paid by it as an overcharge. It will therefore follow, that it is not entitled to any discovery, and that if it has any action whatsoever, it would be in a court of law, and not in a court of equity.

In other words, we say that the only thing it can recover, and the only thing it can be heard to say, is that the railroad company charged it an amount over and above its lawful rate; that it knew at the time it paid it, in legal effect, and that its action is for the overcharge, and we say that it has not stated a cause of action that would be good in a court of law, or for that matter, in any court.

S. L. Gwin and B. L. Mayes, for appellee.

On the right to recover charges which are unauthorized by or which are in violation of, the provisions of the carriers' tariffs, see I. C. R. R. Co. v. Henderson Elev. Co., 226 U.S. 441, 57 L.Ed. 290; Armour Packing Co....