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

• Decision Date: 03 July 1911
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WOLF
• Court: Arkansas Supreme Court

139 S.W. 536

100 Ark. 22

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

Supreme Court of Arkansas

July 3, 1911

Appeal from Baxter Circuit Court; John W. Meek, Judge; reversed.

Judgment reversed and cause remanded.

W. E Hemingway, E. B. Kinsworthy, Horton & South and James H Stevenson, for appellant.

A railway company is not bound by a misquotation of interstate rates occurring through mistake of its agent. The general rule, based on grounds of public policy and to prevent the possibility of collusive misquotations and mistakes in rate quotations from resulting in evasions of the tariffs filed with the Interstate Commerce Commission, is that a misquotation of rates by an agent of the company does not entitle the shipper to the erroneous rate, but he must pay the rate called for by the tariff regularly on file. Barnes Interstate Trans. § 446A; 1 Drinker, Interstate Comm. Act, § 244. This same principle has been recognized by this court. See 71 Ark. 552, 555. See also 158 U.S. 98; 76 Ark. 82; 202 U.S. 242, 244-5. This principle controls whether the erroneous rate is fixed in a bill of lading, or rests only in parol or the verbal agreement of the agent. 12 1. C. C. Rep. 469; 14 Id. 232, 236. It is immaterial that the contract for the lower rate than the tariff calls for was entered into by mistake, or that the shipper was ignorant of what the published rate really was. 43 S.W. 609; 54 Kan. 232; 38 P. 266; 102 U.S. 242; 119 Ala. 539.

Allyn Smith, for appellee.

Had appellant furnished a car of 40,000 pounds capacity, the rate quoted would have been correct. Since appellee had no control over the selection of the car of 80,000 capacity, appellant's contention that he should be held for the excess capacity is hardly tenable. Appellant's contention that appellee cannot recover is also contrary to a statute of this State making it unlawful for a railway company to charge and collect or attempt to charge and collect a greater sum for transporting goods "than is specified in the bill of lading." Kirby's Dig., § 6664.

OPINION

WOOD, J.

This is a suit by appellee against appellant, instituted in a justice of the peace court to recover $ 42, alleged to be due appellee from appellant on account of wood shipped over appellant's railway and by it converted to its own use. The complaint alleged, among other things, that appellee delivered to appellant for shipment from Crickett, Ark., to Aurora, Mo., 12 cords of wood in car P. M. 51,099 at an agreed price of four and one-half cents per hundredweight; that the wood weighed forty thousand, and was billed out at that weight, making the agreed freight $ 18; that the value of the wood at Aurora was $ 2.50 per cord; that appellant, instead of delivering the wood to appellee at Aurora, converted same to its own use and benefit. Therefore, appellee prayed for judgment in the sum of $ 44.50, with interest and costs.

The answer denied the allegations of the complaint, and denied any liability to the plaintiff. The case was tried in the circuit court upon an agreed statement of facts, as follows:

It was agreed in open court that the plaintiff, J. W. Wolf, on December 18, 1909, shipped a car of cordwood from Crickett, Ark., consigned to himself at Aurora, Mo.; that the agent at Crickett gave him a minimum weight of forty thousand pounds on said car, and issued him a bill of lading for said car of wood. The bill of lading was made a part of the agreed statement of facts, and was read to the jury. It is in the ordinary form of a non-negotiable bill of lading, reading from Crickett, Ark., to Aurora, Mo., and consigned by J. W. Wolf to himself, for "12 cords wood," "weight (subject to correction) 40,000."

It was further agreed that the freight on said car of wood was to be $ 18, according to said bill of lading, but that when said car of wood reached Aurora the agent at that place refused to accept the $ 18 as freight, and to allow plaintiff to pay the same and unload said car, but demanded instead $ 36 as the amount of the freight; that the agent declined to so settle with the plaintiff, upon the ground that the marked capacity of said car was 80,000 pounds, and that by the tariff A-791 of the Interstate Commerce Commission--this being an interstate shipment--he was not allowed by law to collect the freight on said car for less than its "marked capacity"; that the consignee refused to accept said car, and pay said $ 36 freight demanded, and that said car remained at Aurora 17 days, and was sold by said agent at said place for $ 62.50, which, after deducting $ 17 for seventeen days' demurrage and $ 36 for the freight, left $ 9.50 in the hands of the defendant due the plaintiff, which the defendant offered to pay the plaintiff, and he refused, demanding the value of the wood, $ 62.50, less $ 18 freight, as per the terms of the way bill.

It was further agreed that the paper folder attached to the agreement is I. C. C. Tariff No. A-791 referred to, and that same should be considered as evidence in the case. (Said tariff is a regularly printed and authorized Interstate Commerce Commission tariff covering cord wood, etc., between stations on the Missouri Pacific Railway and St. Louis, Iron Mountain & Southern Railway, "in Arkansas * * * Missouri * * * etc." Item 17 of the third sheet applying between Crickett, Ark., and Aurora, Mo., on "cord wood, car loads, minimum weight marked capacity of car * * * 4 1/2 cents per hundredweight.")

And it was further agreed that certain letters of G. M. Kirby, the agent at Aurora, Mo., addressed to J. S. Tustin, general freight claim agent for the defendant, and bearing dates respectively January 2, 1910, January 13, 1910, be read in evidence. The first of these letters was a letter from the agent at Aurora to the general freight claim agent, advising him that the consignee had refused the shipment for the reason that he contended that he was to pay freight only on 40,000 pounds, whereas the local agent had been instructed by the commercial agent of the company that he could not accept freight on forty thousand pounds, but that he must only receive freight for the market capacity. The local agent asked authority to dispose of the shipment.

The other letter is a letter also from the agent at Aurora, showing that the company had sold the shipment to Bert Gardner of Aurora, Mo., for $ 62.50, being $ 2.50 higher than any other bid, and that the amount realized, after deducting freight, $ 36, and 17 days' demurrage, $ 17, total $ 53, left a balance of $ 9.50, which was remitted.

It was further agreed between the parties that at the time said car was shipped from Crickett the agent at said station undertook to bill out the same from memory as to...