The L.I.R.R. Co. v. Midland Valley Lbr. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Sutton
• Citation: The L.I.R.R. Co. v. Midland Valley Lbr. Co., 164 S.W.2d 930, 237 Mo.App. 147 (Mo. App. 1942)
• Decision Date: 06 October 1942
• Docket Number: No. 26107.,26107.
• Parties: THE LONG ISLAND RAILROAD COMPANY, A CORPORATION, APPELLANT, v. MIDLAND VALLEY LUMBER COMPANY, A CORPORATION, RESPONDENT.

164 S.W.2d 930

THE LONG ISLAND RAILROAD COMPANY, A CORPORATION, APPELLANT, v. MIDLAND VALLEY LUMBER COMPANY, A CORPORATION, RESPONDENT.

No. 26107.

St. Louis Court of Appeals, Missouri.

Opinion filed October 6, 1942.

Appeal from the Circuit Court of City of St. Louis. — Hon. William S. Connor, Judge.

REVERSED AND REMANDED (with directions.)

Fordyce, White, Mayne, Williams & Hartman and G. Carroll Stribling for appellant.

(1) Under the undisputed testimony defendant became liable for the freight charges because: (a) As to the shipment from Siler City, North Carolina, to Potomac Yards, Virginia, defendant was the owner, consignor and consignee, and defendant's acceptance of the shipment by ordering its reconsignment made defendant liable for such charges. M. & O.R.R. v. So. Saw Mill Co., 212 Mo. App. 117, 251 S.W. 434; Yazoo & M.V.R.R. Co. v. Picher Lead Co., 190 S.W. 387; Chicago & E.R. Co. v. Lightfoot et al., 206 Mo. App. 436, 232 S.W. 176; New York Central R.R. Co. v. Little Jones Coal Co., 25 F. Supp. 337; L. & N.R.R. Co. v. U.S., 267 U.S. 395, 69 L. Ed. 678; New York Central & Hudson R.R. Co. v. York & Whitney Co., 256 U.S. 406, 65 L. Ed. 1016; Pittsburgh, C.C. & St. L. Ry. Co. v. Fink, 63 L. Ed. 1151, 250 U.S. 577; Wabash R.R. Co. v. Horn, 40 Fed. (2d) 905 (C.C.A. 7th); Penn R.R. Co. v. Lord & Spencer, Inc., 295 Mass. 179, 3 N.E. (2d) 231; Penn. R.R. Co. v. Rothstein, 109 Pa. 96, 165 A. 752; New York Central R.R. Co. v. Warren Ross Lumber Co., 234 N.Y. 261, 137 N.E. 324. (b) As to the balance of the shipment from Potomac Yards to Long Island City, defendant is liable for the charges as the owner and consignor, under its diversion order. L. & N.R.R. Co. v. Central Iron & Coke Co., 68 L. Ed. 900, 265 U.S. 59; New York Central R.R. Co. v. Little Jones Coal Co., supra; Chicago, Burlington & Quincey Ry. Co. v. Evans, 221 Mo. App. 757, 288 S.W. 73. (c) Since the defendant did not sign any statement requiring the carrier to look to the consignee only for freight charges, and did not limit its obligation by the terms of the reconsignment order, the failure of the carrier to collect from Klein Brothers did not exonerate defendant from liability. Yazoo & Mississippi V.R. Co. v. Picher Lead Co. (Mo. App.), 190 S.W. 387; Dare v. New York Central R.R. Co., 20 Fed. (2d) 379, C.C.A. 2nd; Pennsylvania R.R. Co. v. Marceletti, 256 Mich. 411, 240 N.W. 4, 78 A.L.R. 924; Western Maryland Railway Co. v. Cross, 96 W. Va. 666, 123 S.E. 572; Cleveland C.C. & St. L.R.R. v. Southern Coal & Coke Co., 147 Tenn. 433, 248 S.W. 297; Davis v. Ford, 193 N.C. 444, 137 S.E. 328. (2) The evidence entirely fails to establish any defense for respondent because defendant's liability for freight charges having attached, no act of the carrier other than a failure to file suit within the period of limitation required by the Interstate Commerce Act could bar its recovery. Interstate Commerce Act, sec. 6, par. 7 (Act of June 29, 1906, c. 3591), sec. 2, 34 Stat. 587 (as amended by the Transportation Act of February 28, 1929, c. 91), sec. 411, 41 Stat. 483, 49 U.S.C.A., sec. 6, par. 7, p. 283; Sec. 2 of Interstate Commerce Act (Act of 1887, c. 104, sec. 2), 24 Stat. 379 (as amended by the Transportation Act of February 28, 1920, c. 91), sec. 404, 41 Stat. 479; L. & N.R.R. Co. v. Central Iron & Coke Co., supra; Pittsburgh, C.C. & St. L. Ry. Co. v. Fink, supra; New York Central R.R. v. Little Jones Coal Co., supra; Mobile & Ohio Ry. Co. v. Southern Sawmill Co., 212 Mo. App. 117, 132, 251 S.W. 434. (a) Equitable considerations, including equitable estoppel, may not preclude the carrier from collecting the full amount of the charges fixed by the applicable rates on file with the Interstate Commerce Commission. Baldwin v. Scott County Milling Co., 83 L. Ed. 1409, 307 U.S. 478; Sonken Galamba Corp. v. Missouri Pacific Ry. Co., 225 Mo. App. 1066, 40 S.W. (2d) 524; Pittsburgh, C.C. & St. L. Ry. Co. v. Fink, supra; L. & N.R.R. v. Central Iron & Coke Co., supra; Mellon v. Stockton & Lamkin, 326 Mo. 129, 30 S.W. (2d) 974; Mellon v. Stockton & Lamkin, 225 Mo. App. 122, 35 S.W. (2d) 612. (b) The facts in the record do not establish a sufficient defense based upon an estoppel in any event. State ex rel. City of California v. Mo. Utilities Co., 339 Mo. 685, 96 S.W. (2d) 607; State ex rel. Sikeston v. Mo. Utilities Co., 331 Mo. 337, 53 S.W. (2d) 394.

Leahy, Walther & Hecker, and Hugo M. Walther for respondent.

(1) Where a jury is waived and the cause is tried by the court, its findings have the conclusiveness of a verdict and will not be disturbed if supported by any substantial evidence whatever. Neidt v. American Ry. Express Co., 6 S.W. (2d) 973; United States Fidelity & Guaranty Co. v. Fidelity National Bank & Trust Co., 109 S.W. (2d) 47. As plaintiff delivered the lumber to the consignee after the expiration of the maximum credit period authorized by the Interstate Commerce Commission and contrary to the provisions of the bill of lading, it has not made a case against defendant for the freight charges. Sec. 3, Par. 2 of the Interstate Commerce Act [49 U.S.C.A., sec. 3 (1)]; Interstate Commerce Commission Ex Parte Order No. 73, Vol. 171, I.C.C. Reports 268, 281. (3) Plaintiff by delivering freight to the consignee after the period of credit had expired, by pursuing its claim against the consignee, by filing a claim against the consignee's bankrupt estate, and by not notifying defendant that its freight charges had not been paid until after defendant released its right to collect the freight charges from its insurance company elected to look to the consignee for payment, and by its actions is estopped from making claim against defendant. Yazoo & M.V.R. Co. v. Zemurray, 238 Fed. 789; City of California v. Mo. Utilities Co., 339 Mo. 685, 96 S.W. (2d) 607; Peery v. Hall, 75 Mo. 503.

SUTTON, C.

This is an action to recover freight charges in the amount of $252.71 upon a shipment of lumber moving in interstate commerce from Siler City, North Carolina, to Long Island City, New York.

The action was commenced on September 8, 1937, in a justice of the peace court, whence it went on appeal to the circuit court. The trial in the circuit court de novo was had before the court without a jury, and resulted in a judgment in favor of the defendant. Plaintiff appeals.

Plaintiff's evidence shows that the lumber in queston was originally shipped from Siler City by defendant, through its agent, Wrenn Brothers, to defendant as consignee at Potomac Yards, Virginia. The original bill of lading was issued by the Atlantic and Yadkin Railway Company. Defendant is listed as both consignor and consignee in the bill of lading. When the shipment reached Potomac Yards, in Virginia, defendant by a letter to plaintiff, directed the reconsignment of the shipment to Klein Brothers at Long Island City, New York. The original bill of lading is the standard form bill prescribed by the Interstate Commerce Commission. On its face there is a provision that if the shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement:

"The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges."

Under this provision is a space designated as for "Signature of Consignor."

This provision was not signed.

On the reverse side of the bill is the following provision:

"The owner or consignee shall pay the freight and average, if any, and all other lawful charges accruing on said property; but, except in those instances where it may lawfully be authorized to do so, no carrier by railroad shall deliver or relinquish possession at destination of the property covered by this bill of lading until all tariff rates and charges thereon have been paid. The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading that the carrier shall not make delivery without requiring payment of such charges and the carrier, contrary to such stipulation, shall make delivery without requiring such payment, the consignor (except as hereinafter provided) shall not be liable for such charges."

The shipment left Siler City on September 6, 1934, and arrived in Long Island City on September 12th. The shipment was delivered to one Grossman, who was the regular trucker for Klein Brothers. He receipted for the shipment and the car was released by Klein Brothers on September 18th at five P.M.

There is no dispute that the proper freight charges for the shipment amounted to a total of $252.71.

Klein Brothers were placed on plaintiff's credit list on May 25, 1912, and remained on the list until December 11, 1934. Patrons on the list were given forty-eight hours in which to pay their bills.

Ex Parte order No. 73 of the Interstate Commerce Commission, 171 I.C.C.R. 268, provides as follows:

"The carrier, upon taking precautions deemed by it to be sufficient to assure payment of the tariff charges within the credit periods herein specified, may relinquish possession of freight in advance of the payment of the tariff charges thereon and may extend credit in the amount of such charges to those who undertake to pay such charges, such persons herein being called shippers, for a period of 48 hours computed as hereinafter set forth."

Dennis A. O'Leary, freight agent of plaintiff at Long Island City, testified that the car of lumber was available for delivery on September 12, 1934, and that the freight bill was mailed to Klein Brothers on that date; and when payment was not received on the morning of September 15th Klein Brothers were communicated with by telephone, and again on September 16th; that the first letter requesting payment was made on September 18th.

Arthur L. Naylor, freight agent of plaintiff at Long Island City, testified that at the time of the delivery on September 12,...