St. Louis, Iron Mountain & Southern Railway Co. v. Gibson

• Decision Date: 24 March 1900
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GIBSON
• Court: Arkansas Supreme Court

56 S.W. 268

68 Ark. 34

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. GIBSON

Supreme Court of Arkansas

March 24, 1900

Appeal from Hempstead Circuit Court, RUFUS D. HEARN, Judge.

STATEMENT BY THE COURT.

The plaintiffs, Arthur A. and John S. Gibson, are merchants and dealers in drugs, wines and liquors at Hope,Arkansas. On the 14th day of September, 1895, they had four barrels of whisky shipped to them from Louisville, Ky.The whisky was consigned to A. A. Gibson & Son, Hope, Arkansas, via Little Rock, but the bill of lading only stated the freight charges from Louisville to Little Rock, and guaranteed the rate between those points to be $ 1.20 per barrel, weight of 4 barrels 1,600 pounds, subject to correction.

The whisky arrived at Little Rock over the Little Rock & Memphis Railroad, and soon afterwards the agent, of that line notified Gibson & Son, by letter, of that fact, stating that the charges to Little Rock were $ 6, and that the Iron Mountain road would not accept freight unless charges to Little Rock were prepaid. Gibson replied that the guaranteed rate, as shown by the bill of lading, was $ 1.20 per barrel to Little Rock, and offered to remit at that rate. To this letter the agent of the Little Rock & Memphis Company replied, asking him to send the bill of lading, and saying he would endeavor to adjust the same. Gibson did not do this but carried the bill of lading to the local agent of the defendant company at Hope, told him, of the shipment, that the goods were at Little Rock, and tendered him $ 12.64, that being at the rate guaranteed from Louisville to Little Rock on 1,600 pounds, with the addition of the local rate of the defendant company from Little Rock to Hope. The agent declined to accept it, but said that he would telegraph the agent of his company at Little Rock. Gibson did not at this time inform the local agent at Hope that the Memphis & Little Rock Company had demanded a higher freight charge than specified in the bill of lading, and the agent at Hope did not know of the controversy on that point. So without referring to that controversy, of which he was ignorant, he telegraphed to the agent of his company as follows: "A A. Gibson & Son have four barrels whiskey in L. R. & M. frt depot. They make tender of the freight charges here. Please wire amount of prepay, and will collect it here. The agent of the L. R. & M. road writes me that you request prepayment. Please answer quick." On the receipt of this telegram from the agent at Hope, the agent at Little Rock, without replying, accepted the shipment from the Little Rock & Memphis Railroad, and paid the $ 6 charges demanded by that company, and forwarded the whiskey, without knowing that the $ 6 was more than the bill of lading specified. When the whiskey arrived at Hope, the agent then saw from the way bill that the back charges exceeded those named in the bill of lading, and this was the first information he or any agent of defendant had of that fact. After the whiskey arrived, Gibson was informed that the goods weighed 1,770 pounds instead of 1,600; that the back charges paid were greater than those named in the bill of lading, and that the total charges due were $ 14.68. He refused to pay, but tendered $ 13.50, that being according to the rate named in the bill of lading with weights corrected, and with local rate from Little Rock to Hope added. The company at first refused to accept, but after holding same for over a month, delivered the whiskey to Gibson, and received from him the $ 13.50 in satisfaction of the freight.

The plaintiffs afterwards brought this suit against the Iron Mountain Company to recover the penalties imposed by the statute against railroad companies for refusing to deliver goods to the consignee after payment or tender of the freight charges due as shown by the bill of lading.

There was a verdict and judgment in favor of plaintiff for the sum of $ 742.50, from which judgment the company appealed.

Judgment reversed and case dismissed.

J. E. Williams and Dodge & Johnson, for appellant.

This being an interstate shipment, it is not governed by the state statute. 158 U.S. 98; 34 S.W. 145; 21 S.W. 554; 45 S.W. 814; 43 S.W. 609; 46 S.W. 633; 74 F. 981; 58 F. 858; 41 F. 592. The statute, being penal, must be strictly construed. 6 Ark. 131; 13 Ark. 405; 43 Ark. 413; 59 Ark. 341; 56 Ark. 45; 40 Ark. 97; 59 Ark. 344; 22 S.W. 1014. Where the bill of lading does not show all the charges that are legally demandable by the carrier, this court has held the penalty not recoverable. 56 Ark. 430. The appellant, being only a connecting carrier, and not a party to the original contract, was entitled to hold the goods for the charges paid by it. 56 Ark. 439; 22 S.W. 1014; 21 S.W. 554; 84 Tex. 194; 21 S.E. 995; 63 Mo.App. 145; 69 N.Y. 230; 25 Wis. 241; 27 Mo. 17. The court erred in refusing to give the instructions asked by appellant under authority of 56 Ark. 439. It was also error to refuse the 8th instruction asked by appellant, telling the jury that, if the bill of lading did not show all the charges that were legally demandable, the statutory penalty was not recoverable. 41 F. 593. The interstate-commerce law governed the rates chargeable in this case, and, the charges being in conformity to that schedule, no other rate would have been legal, even if agreed upon. 43 S.W. 609; 40 S.W. 899; 158 U.S. 98. The facts are such as to show that appellant was not a party to the bill of lading, and that there was really a new contract of carriage from Little Rock to Hope. In such a case it is not within the terms of the statute. 74 F. 858; 63 Mo.App. 145; 55 Am. & Eng. R. Cas. 442, 414, 416; 69 N.Y. 230; 25 Wis. 241; 19 S.W. 470.

Jas. H. McCollum, for appellees.

Appellant's act was a plain violation of the statute. Sand. & H. Dig., § 6256. The application of this statute is not limited to companies issuing the bill of lading, but reaches alike to all companies refusing to deliver the goods to the consignees upon payment, or tender of payment, of freight due under the bill of lading, whether issued by the offending company or not. 49 Ark. 291; 75 Tex. 572; 46 S.W. 33. Notice to the appellant's agent of the provisions of the bill of lading was notice to appellant. Clark, Corp. 502; Wade, Notice, § 672; 1 Ell. Railroads, § 226; 24 Am. St. Rep. 722; 29 Ark. 99; 52 Ark. 11. It was the duty of appellant to deliver the goods in accordance with the bill of lading. 64 Ark. 169; 36 S.W. 183. By accepting the goods for transportation under the bill of lading, with notice of its terms, appellant became bound thereby. 51 Am. St. Rep. 155; 61 ib. 679; 63 ib. 856; 23 S.W. 1020; 8 Am. & Eng. Enc. Law, §§ 970-1. Connecting carriers which have not agreed upon and filed the schedule of rates with the Interstate Commerce Commission, in compliance with the act, are not exposed to its penalties, or controlled by it. 23 S.W. 732; 158 U.S. 98.

OPINION

RIDDICK, J., (after stating the facts.)

We are of the opinion that the judgment against the railway company for a penalty...