The State ex rel. Chicago, Milwaukee & St. Paul Railway Co. v. Public Service Commission of Missouri
| Decision Date | 11 November 1916 |
| Citation | 189 S.W. 377,269 Mo. 63 |
| Parties | THE STATE ex rel. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY et al., Appellants, v. PUBLIC SERVICE COMMISSION OF MISSOURI and BOARD OF TRADE OF KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Harris A. Robinson Judge.
Affirmed.
O. W Dynes, S.W. Moore, J. M. Souby, James F. Green, Cowherd Ingraham, Durham & Morse, N. S. Brown and Scarritt, Scarritt, Jones & Miller for appellants.
(1) Custom and usage or usual course of business between shippers and railroads in handling any commodity is everywhere recognized as all important in determining the rights of shippers and the rights and liabilities of railroads. Examine almost any authority on railroads, and upon almost every page the statement will be found that usage and course of business is a prime essential in arriving at the rights and liabilities of the railroads. 6 Cyc. 418, 428, 457, 465; The Richmond, 1 Biss. (U.S.) 49; Staroske v. Pub. Co., 235 Mo. 75; Cahn v. Railroad, 71 Ill. 96. Grain is different from every other commodity and must be handled in a amnner peculiar to itself. Therefore, to refuse to consider the established custom or usage in the transportation and delivery of grain by railroads at any given point is to shut one's eyes to the only way, in the absence of statutes, of determining whether or not a carrier has performed its duty to a shipper of grain. (2) By the words "Kansas City, Missouri," in a bill of lading is not meant the corporate limits of Kansas City, Missouri, but rather the "switching limits of Kansas City." It is erroneous to conclude that the words "Kansas City, Missouri," can have only one signification wherever found and in whatever connection used and, therefore, not subject to interpretation. The words unquestionably have different significations in different connections. The boundary between Kansas City, Missouri, and Kansas City, Kansas, is purely an imaginary line, and it is entirely a political division and not a business division. No distinction whatever is known among shippers or railroads between Kansas City, Missouri, and Kansas City, Kansas. Devato v. Plumbago, 20 F. 510; Milling Co. v. Railroad, 152 Wis. 528. To construe the words "Kansas City, Missouri," in the bill of lading, "does not change a contract, vary it in any way; it merely gets out of it the sense the parties intended to put into it" Reiss v. Railroad, 98 F. 533. We do not rely solely on usage and custom to define the words "Kansas City, Missouri," as used to designate the terminal in a grain bill of lading. The tariffs published by the railroads distinctly set forth, as being within such terminal, Argentine, Kansas City, Rosedale, etc., in Kansas. "So far as grain traffic is concerned, these substations are subdivisions; are all within the Kansas City switching limits and are a part of the market at Kansas City." A part of the State of Kansas being within the limits of "Kansas City, Missouri," as that designation is known in shipping and railroading, and as explained in the published tariffs of the railroads, it is distinctly erroneous to conclude that the intention or contract of the shipper, as evidenced by the bill of lading, was that the grain in question should be moved only in Missouri. (3) There is no delivery at the "hold" tracks. Unquestionably it is the duty and contract of the common carrier not only to transport commodities from one point to another, but it has the further duty to make delivery at the terminal point. Until delivery is made, the contract, evidenced by the bill of lading, is not completed. There was no "delivery to the consignee of the shipper on the 'hold' track of the carrier." Delivery is generally a matter of cold, actual, physical fact, rather than a matter of argument or speculation. Whether or not a carrier has made delivery of a commodity at a proper place, so as to complete its contract, frequently, if not generally, depends upon the usage or practice in the particular locality, as to the delivery of such commodity. Whether considered from the standpoint of cold, actual, physical fact, or from the standpoint of usage and practice, the conclusion must be against the finding that there is ever a delivery of grain on the "hold" track of a railroad, in Kansas City. There is no facility for unloading grain at the "hold" track. It is not reachable even by wagons. During the whole time that a car of grain stands upon the "hold" track, it is in the custody of the carrier and the carrier is responsible for the same, as carrier. If the grain should be burned or destroyed while on the "hold" track, there can be no question but what the railroad company would be liable as insurer. Railroad v. Nash, 43 Ind. 423; Milling Co. v. Railroad, 152 Wis. 528; Lewis v. Sharvey, 58 Minn. 464; Interstate Com. Comm. v. Railway, 234 U.S. 294; 6 Cyc. 467; Railroad v. Murray, 72 Ill. 128; Cahn v. Railroad, 71 Ill. 96; Railroad v. Nash, 43 Ind. 423; The Richmond, 1 Biss. (U.S.) 49; Bartlett v. Steamboat, 32 Mo. 259; The Boston, 1 Lowell (U.S.), 464. (4) The order for delivery is not the making of a new contract or the starting of a new shipment. There is no consideration moving to the railroad company for any new contract for this movement from the "hold" track to the point of delivery. The order giving the point of unloading is not the giving of a new destination, but is only the designation of the point of delivery, within the original destination. State ex rel. v. Railroad, 176 Mo. 687; Milling Co. v. Railroad, 152 Wis. 528; Badenoch & Co. v. Railroad, 22 I. C. C. 36; Fuel Co. v. Railroad, 15 I. C. C. 443. Where, as here, a commodity has moved from a seller in Missouri to a buyer in Kansas in the same car in which it was first loaded, and the car, from loading to unloading, has remained in the custody of the carrier and has continued under the control and direction of the original shipper, or his agent, it would certainly seem a simple fact, too plain for argument, that the commodity had moved from the seller in Missouri to the buyer in Kansas in interstate commerce.
Wm. G. Busby and Atwood & Hill for respondents.
(1) We especially call the court's attention to the following cases which are undoubtedly controlling and decisive of this case: Hay & Grain Co. v. Railroad, 2 I. C. C. 82; Larabee v. Railroad, 74 Kan. 808; Railroad v. Larabee, 211 U.S. 612; Coe v. Errol, 116 U.S. 517; Railroad v. Texas, 204 U.S. 403; Railroad v. Iowa 233 U.S. 343; Kolkmeyer v. Railroad, 182 S.W. 794. (2) A shipment takes the character of interstate commerce only when it is actually started in the movement to another State and becomes interstate commerce only when such movement begins. Larabee v. Railroad, 74 Kan. 818; Shipping Assn. v. Railroad, 90 Kan. 264; Railroad v. Railroad Comm., 173 Ind. 469; Smith & Son v. Railroad, 177 Mo.App. 270. (3) The movement of the grain from the point of origin in this State to point of final destination in the State of Kansas is not a continuous movement between the States. Railroad v. Iowa 233 U.S. 343; Railroad v. Texas, 204 U.S. 403. The contract between the railroad company and the shipper of grain was for the carriage of the grain from a point in this State to Kansas City, Mo. Custom cannot change the contract to one requiring the additional movement of the grain from Kansas City, Mo., to Kansas. Bank v. Burkhardt, 100 U.S. 692; Tilley v. Cook County, 103 U.S. 162. (4) The consignee accepted delivery of the grain upon the hold track at Kansas City, Missouri, and the further movement of the grain to Kansas was an interstate movement beginning at the hold track and not at the point of origin of the shipment. (a) The consignee may receive goods addressed to him in the hands of the carrier at any place -- original destination or intermediate point -- and such acceptance operates as a discharge of the common carrier liability of the railroad to the consignor -- the contract of carriage being thus completed. Hay & Grain Co. v. Railroad, 11 I. C. C. 82; Sweet v. Barney, 23 N.Y. 338; Lewis v. Railroad, 11 Met. (52 Mass.) 509; Railroad v. Bartlett, 7 H. & N. 401; Freeman v. Railroad, 118 Mo.App. 534; Grain Co. v. Railroad, 134 Mo.App. 684; Smith v. Railroad, 177 Mo.App. 270. (5) Diversion, reconsignment and transit privileges are of importance in the proper handling of transportation, but these privileges are often abused and at times at certain points are almost impossible of application, due to conditions over which the carriers have no control, and for years past the majority of shipments in and out of Kansas City have moved upon reshipping rates, in lieu of transit rates. Board of Trade v. Railroad, 29 I. C. C. 376; Morgan v. M., K. & T., 12 I. C. C. 525; Freight Bureau v. Railroad, 14 I. C. C. 150.
OPINION
In Banc.
This is an appeal from a judgment of the circuit court of Jackson County under the provisions of section 114, Laws 1913, page 644.
The Board of Trade of Kansas City, Missouri, filed a complaint before the Public Service Commission, alleging that the railroad companies named above as appellants were charging interstate instead of intrastate rates for shipments of grain from points on their respective lines within this State to Kansas City, Missouri, in violation of the State maximum freight rates. [Secs. 3240, 3241, R. S. 1909.]
Upon a hearing a finding was made by the commission sustaining the contention of complainants that the said shipments were intrastate instead of interstate, and the railroad companies were ordered to desist from charging higher rates for such shipments than those prescribed by the State statutes.
A review of the findings and order of...
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