St. Louis, Southern Railway Company of Texas v. Spring River Stone Co.

• Decision Date: 03 March 1913
• Parties: ST. LOUIS, SOUTHERN RAILWAY COMPANY OF TEXAS, Appellant, v. SPRING RIVER STONE COMPANY, Respondent
• Court: Missouri Court of Appeals

154 S.W. 465

169 Mo.App. 109

ST. LOUIS, SOUTHERN RAILWAY COMPANY OF TEXAS, Appellant, v. SPRING RIVER STONE COMPANY, Respondent

Court of Appeals of Missouri, Springfield

March 3, 1913

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Jasper Circuit Court, Division Number Two.--Hon David E Blair, Judge.

AFFIRMED.

Judgment affirmed.

S. H West, McReynolds & Halliburton, and Roy F. Britton for appellant.

1. Common carriers by railroad engaged in interstate commerce are required by the acts of Congress regulating commerce to collect the rates published in the schedules or tariffs on file with the Interstate Commerce Commission. Act of Feb. 4 1887, U. S. Comp. Stat. 1901, p. 3158; amended by the Act of June 29, 1906, U. S. Comp. Stat. Sup. 1909, p. 1153, as amended by the Act of June 18, 1910, U. S. Comp. Stat. Sup. 1911, p. 1284; Railroad v. Hefley, 158 U.S. 98; Railroad v. Mugg, 202 U.S. 242; Packing Co. v. United States, 209 U.S. 56; Railroad v. Cotton Oil Co., 204 U.S. 426; Railroad v. Oil Mill Co., 204 U.S. 449; Commission Co. v. Railroad, 223 U.S. 573; Grain Co. v. Railroad, 12 I. C. C. Rep. 418; Blinn v. Railroad, 18 I. C. C. Rep. 430; Gerber v. Railroad, 63 Mo.App. 145. (2) Shippers are presumed to know the provisions of tariffs duly published and filed with the Interstate Commerce Commission, and rates named in such tariffs are not the subject of contract between carriers and shippers. Railroad v. Kirby (1912), 32 Sup. 648; Railroad v. New Albany B. & B. Co., 94 N.E. 906; Mires v. Railroad, 134 Mo.App. 379. (3) The shipping ticket prepared by respondent's employee and signed by appellant's agent is a "bill of lading." A bill of lading is the carrier's receipt for goods delivered to it for transportation. It may also contain the contract of carriage, but this is not necessary to make the instrument a bill of lading. Porter on Bills of Lading; Standard Dictionary; Webster's New International Dictionary; Century Dictionary; Cope v. Cordova, 2 Rawle (Pa.), 202; The Mayflower, 16 Fed. Cas. 1250; Hutchinson on Carriers. (4) Secondary evidence as to the contents of a written instrument is admissible where the original is beyond the jurisdiction of the court, or beyond the control of either party. Wigmore on Evidence, 1211-1213; Brown v. Wood, 19 Mo. 475; Afflick v. Streeter, 136 Mo.App. 712; Harvey v. Herrman, 39 Mo.App. 214. (5) A tariff provision designed to change or effect interstate rates or charges will not be effective unless such provision is published, filed and strictly complied with. Item 81 of Texas Tariff 42-B. I. C. C., No. 524, in effect at the time these shipments were made, provides that when shippers order cars of specified capacity in writing, and the order is noted on the bill of lading, the capacity of the car ordered will be the minimum weight, but as neither of these conditions was complied with, the marked capacity of the car used is the minimum weight as provided in the tariff.

Thomas & Hackney for respondent.

(1) While the tariff rates, rules and regulations filed with the Interstate Commerce Commission become binding on the carrier and the shipper by reason of such filing, yet if the carrier negligently fails to post these rates, etc., in its station (which appears to have been the cause of the trouble in this case), it becomes liable to the shipper for damages sustained in consequence of such neglect. Railroad v. Lewellen Bros., 192 F. 540; Railroad v. Elevator Co., 138 Ky. 220, 127 S.W. 777; Freeman v. Kemendo, 148 S.W. 605. (2) Under item 81 of the rule read in evidence, it was the duty of the carrier to indorse on its bill of lading and waybill in each case the capacity of the car ordered, the number of the order and date of same, where a smaller capacity car had been ordered by the shipper and a greater capacity car had been furnished for the convenience of the carrier. This duty in the very nature of the case devolved on the carrier who issued these documents, and if in consequence of its failure to discharge its duty, the shipper was required to pay the higher rate, a just claim for overcharge existed in behalf of the shipper. Authorities, supra. (3) Where a carrier quoted a legal rate but failed to advise the shipper of a certain limitation attached to it, and as a consequence the shipper failed to sign the released valuation clause, because of which he was forced to pay the higher rate, reparation was awarded. Cotton Oil Co. v. Railroad, 18 Interstate Com. Rep. 180; Cotton Oil Co. v. Railroad, 19 Interstate Com. Rep. 79; Miller & Lux v. Railroad, 20 Interstate Com. Rep. 129. (4) Where as in this case a settlement is made, and with full knowledge of all of the facts money is paid, even under a mistake of law, it cannot be recovered back by the party making the payment. Campbell v. Clark, 44 Mo.App. 249; State ex rel. Scotland Co. v. Ewing, 116 Mo. 129; Corbin v. Adair Co., 171 Mo. 385; Hethcock v. Crawford Co., 200 Mo. 170; Trust Co. v. Bank, 154 Mo.App. 89, 108. (5) The basis of an action for a refund of money paid is that the defendant has received money which ex aequo et bono, he ought to refund. 2 Ency. P. & P. 1016.

ROBERTSON P. J. Sturgis, J., concurs in the result in a separate opinion. Farrington, J., dissents in a separate opinion.

OPINION

ROBERTSON, P. J.

--Plaintiff sued defendant in the circuit court to recover $ 323.12 from defendant and based its claim thereto on the following facts: In 1908 defendant was operating a stone quarry at Carthage, Missouri, and was negotiating with one J. B. Hoffman of Ft. Worth, Texas, for the sale of five cars of stone to be delivered to Hoffman at Ft. Worth. Defendant called upon the commercial agent of the plaintiff for a quotation of freight rates and received a quotation of 27 1/2 cents per hundred pounds on cars of 50,000 pounds minimum capacity, the agent designating the St. Louis & San Francisco Railroad Company, which had a station and freight office at Carthage, as the initial carrier. Upon this information the defendant quoted Hoffman a price on five 50,000-lb. cars of stone to be delivered at Ft. Worth. This offer was accepted and the defendant company ordered 50,000-lb. cars in each case, but not having that capacity accessible the railroad company furnished in each case cars of greater marked capacity than were ordered by the defendant. Defendant loaded the stone and estimated the weight, according to its dimensions, which was approximately correct, but as the railroad company had no facilities at Carthage for weighing the cars they were not weighed by the railroad company until they reached Monett en route to their destination. The correct weight was slightly in excess of the estimated weight. The shipments were made between November 30, 1908, and December 29 of the same year and when the shipments reached the destination plaintiff attempted to exact freight according to the marked capacity of the cars instead of according to the capacity ordered, though in fact the amount paid by the defendant corresponded neither to the actual nor the estimated weight of the shipments and was $ 30.52 less than the freight would have amounted to upon the marked capacity of the cars. On February 4, 1909, before defendant knew the actual weight of the shipments, it made a written demand upon the claim agent of plaintiff for $ 287.78 overcharge, giving the estimated weight. After making this claim the defendant on February 6, 1909, after learning the correct weight of the cars, reduced its claim to $ 263.73; and thereafter the commercial agent of the plaintiff went to Carthage, made a full investigation and soon thereafter the defendant was paid $ 270.60 on account of the supposed overcharge.

The plaintiff bases its right to recovery in this case upon the theory that the act of Congress, commonly called the Interstate Commerce Act, to regulate commerce and the tariffs and schedules filed in obedience thereto, fixed the rate on this character of shipments at 27 1/2 cents per hundred pounds when the cars ordered and used were loaded to their capacity, but that by virtue of a rule then applicable in this territory that when the carrier could not furnish a car of the capacity ordered by the shipper and for its own convenience provided a car of greater capacity than the one ordered by the shipper, it might use this car on the basis of the minimum carload weight fixed in the tariff applied on the size of the car ordered by the shipper, but in no case less than the actual weight, the capacity of car ordered, number of the order and date of same to be shown in each instance on the bill of lading and the carrier's waybill, and that in this instance the required notations were not made on the waybill nor on the bill of lading and that, therefore, the plaintiff in the first instance should have collected 27 1/2 cents per cwt. on the marked capacity of the cars.

It was conceded at the trial by plaintiff's counsel that when the defendant made its claim for the rebate and when the plaintiff adjusted and paid it that there was no intention upon the part of either of them to violate the law.

The trial below was to a jury and at the conclusion of the plaintiff's testimony the court directed a verdict in favor of the defendant. There is no controversy here as to the facts material to a decision of this case.

In the case of State ex rel. v. Ewing, 116 Mo. 129, 22 S.W 476, an action was brought upon the official bond of the county collector to recover certain sums retained by him on settlements for commissions in excess of what was due him under the law. The defendants in that case, as in this, pleaded the settlements in bar, and at the...