Southern Ry. Co. v. Berthold & Jennings Lumber Co.

• Decision Date: 02 January 1923
• Docket Number: No. 17315.,17315.
• Citation: 247 S.W. 219
• Court: Missouri Court of Appeals
• Parties: SOUTHERN RY. CO. v. BERTHOLD & JENNINGS LUMBER CO.

247 S.W. 219

SOUTHERN RY. CO. v. BERTHOLD & JENNINGS LUMBER CO.

No. 17315.

St. Louis Court of Appeals. Missouri.

January 2, 1923.

Rehearing Denied January 30, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by the Southern Railway Company against the Berthold & Jennings Lumber Company in justice court. There was a judgment for plaintiff, and defendant appealed to the circuit court, which also rendered judgment for plaintiff, and defendant again appeals. Reversed.

Curlee & Hay, of St. Louis, for appellant.

Samuel B. McPheeters, of St. Louis, for respondent.

BRUERE, C.

This is an action begun before a justice of the peace to recover the sum of $6.30, being the amount claimed to be due plaintiff on account of an excessive refund (or undercharge) made by it on a shipment of a car of lumber on June 3, 1913, by defendant from Kennedy, Ala., to Cairo, Ill., over plaintiff's road, with "transit privileges" for dressing and planing at Columbus, an intermediate point. In the justice court judgment was rendered in favor of the plaintiff. Defendant appealed to the St. Louis circuit court, where the case was tried upon an agreed statement of facts and a judgment rendered in favor of plaintiff, and defendant prosecutes the appeal.

The agreed statement of fact reads (caption and signatures omitted) thus:

"The plaintiff is a corporation engaged as a common carrier. The defendant is a corporation engaged in the lumber business, in which it ships lumber by way of plaintiff's road. The particular shipment in question originated at Kennedy, Ala., and at that point consisted of a carload of rough or undressed lumber. This lumber was ultimately destined for Cairo, Ill. It is not unusual for the purchaser at the final destination to require the lumber to be planed or dressed. It is not unusual for this to be done at some point in transit, and not at the point of origin, where the lumber is manufactured. In this instance, there is a planing or dressing mill at Columbus, Miss. The local freight rate from Kennedy, Ala., to Columbus, Miss., was 3 cents per 100 pounds. The rate from Columbus, Miss., to Cairo, Ill., was 12 cents per 100 pounds. The through rate from Kennedy; Ala., to Cairo, Ill., was 13 cents per 100 pounds. It is not unusual for lumber, grain, cotton, and many other commodities to be dressed, milled, compressed, fabricated, or assorted and classified in transit at some intermediate point, called the transit point, between the origin and final destination of shipment. The rate from origin to destination is usually less than the sum of the local rates from origin to transit point and from transit point to destination. It is customary in such cases for the shipper to pay the local rate into the transit point, and when the commodity is reshipped to pay the through rate from point of origin to final destination, whereupon the carrier makes such adjustment or refund as may be required by its published tariffs. Such adjustments vary greatly at different points and among the different carriers, and may be anything that may be determined by the carrier and published in its tariffs, subject only to revision by the Interstate Commerce Commission or state authorities for extortion or discrimination.

"These transit privileges, the refund by the agent at Columbus, and the rebilling of the lumber as of Kennedy, Ala., after the same is dressed at Columbus, are all governed by the' published rates in the Southern Railway Company's tariff's governing transit privileges on lumber at Columbus, Miss., subject to the rules of the Interstate Commerce Commission. The particular shipment out of which the present controversy arose is based upon the following facts:

"On June 3, 1913, defendant shipped car number 113296, the same being a car of lumber weighing 51,200 pounds, from Kennedy; Ala., over plaintiff's road, ultimate destination Cairo, Ill., but consigned to itself or order at Columbus, Miss., for the purpose of having the lumber planed or dressed. The defendant paid 6 cents per 100 pounds freight charges, or $30.72, the same being the charge from Kennedy, Ala., to Columbus, Miss. This car of lumber was dressed at Columbus, Miss., after which it only weighed 40,700 pounds of 10,500 pounds less than when shipped out of Kennedy. The tariff rules in effect at that time provided upon paragraph Basis for Refund' as follows:

"`When lumber is reshipped, original paid expense bills for weight not less than tendered for reshipment must be canceled and retained by agent or approved for use of connecting lines. The agent will then refund reshipper charges into Columbus, Mississippi, less two cents per hundred pounds, with minimum of $6.00 per car, based upon the rebilled weight. A new bill of lading will then be issued at the lawful tariff rate on, the kind of lumber reshipped from original point of shipment to final destination, in effect on the date of shipment to Columbus, Mississippi. In waybilling the sum refunded will be shown as advances, the remainder of the through rate will accrue to lines beyond Columbus, Mississippi.'

"It is agreed that under this rule defendant is entitled to a refund at Columbus on freight charges paid by it at Kennedy, and the issue raised by the plaintiff is as to whether the correct or an excessive refund was made. Plaintiff's agent at Columbus refunded on this and other shipments made under the same tariff the total charge from Kennedy, Ala., to Columbus, Miss., being 6 cents per 100 pounds based on the original weight at Kennedy, Ala., less 2...