Union Transfer Co. v. Renstrom

• Decision Date: 13 May 1949
• Docket Number: 32574.
• Citation: 37 N.W.2d 383,151 Neb. 326
• Parties: UNION TRANSFER CO. v. RENSTROM et al.
• Court: Nebraska Supreme Court

37 N.W.2d 383

151 Neb. 326

UNION TRANSFER CO. v. RENSTROM et al.

No. 32574.

Supreme Court of Nebraska

May 13, 1949

Syllabus by the Court.

1. While an interstate common carrier's duly approved filed, and published tariff over a stipulated or designated route is in force and effect, the classifications and rates named therein are binding by statute upon both the carrier and shipper, and any statements, agreements, or conduct of the carrier or its agents concerning such classifications and rates or the shipper's ignorance of them will not estop or prevent such carrier from collecting, or relieve the shipper from liability for, the proper published rate of which he is presumed to have knowledge.

2. The reason for the rule is that the rights and duties of the carrier and shipper prescribed by the Interstate Commerce Act and the Motor Carrier Act are for the good of the public, to protect it against secret rebates and discriminations, rather than for the enrichment of either the carrier or shipper at the expense of others, and any direct or indirect evasion of such rights and duties by either is expressly prohibited by the acts.

3. When the reasonableness, discriminatory character, or validity of approved, filed, and published tariff rates is not assailed, and no question affecting the power or administrative discretion or judgment of the Interstate Commerce Commission already exercised or to be exercised is involved, but the controversy merely involves the question of whether or not the carrier has exacted the rate prescribed in its tariff, courts have jurisdiction of the subject matter.

4. Where a jury is waived in a law action and the case is tried to the court, the court's findings have the effect of a jury's verdict, and will not be set aside on appeal unless clearly wrong.

Schall Robinson, Hruska & Garvey, Gerald M. Vasak and Charles A Nye, all of Omaha, for appellant.

Jack W. Marer and Norman H. Denenberg, both of Omaha, for appellees.

Heard before SIMMONS, C. J., CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL Justice.

Plaintiff, a duly authorized motor vehicle common carrier engaged in interstate commerce, brought this action to recover the difference between its duly approved, filed, and published applicable tariff rate and the rate paid by defendants, based upon alleged false descriptions in bills of lading furnished plaintiff by defendants for shipments of steel stampings loose in barrels and transported by plaintiff upon designated occasions from Omaha to St. Paul, Minnesota, and return. The items were concededly described and transported as 'unfinished stampings' and if such, concededly carried a rate of 69 cents per 100 pounds, for which shipments defendants paid plaintiff a total of $1,274.31.

However plaintiff alleged that the items transported were in fact 'finished stampings,' that is, they were steel 'Blanks, Shapes or Stampings of 17 Gauge or thinner,' subject to the rating for 'Sheet Steel Ware, N. O. I. (not otherwise indexed) * * * Not nested, in barrels, metal baskets, boxes or crates,' as provided in plaintiff's tariff, which, if such, concededly required the exaction of a first-class rate of $1.38 per 100 pounds, for which transportation defendant should have paid $2,497.69, or a difference of $1,223.38, with interest at 6 percent from August 25, 1944. Plaintiff prayed judgment for that amount.

Defendants answered, denying generally that the items shipped came within the classification or were subject to the rate claimed by plaintiff. Also, in paragraphs 4 and 5 of defendants' answer, plaintiff's demurrer to which was sustained by the trial court, it was substantially alleged: (4) That plaintiff was estopped to deny that the rate of 69 cents per 100 pounds was correct and estopped from charging or collecting a higher rate because plaintiff quoted, agreed to, and did carry such shipments at the lower rate; and (5) that defendants, relying thereon, shipped the items to a firm in St. Paul, Minnesota, to be galvanized for protection from rust when they could have shipped them and had that done by firms in other cities under a tariff rate approximating 69 cents per 100 pounds. Therefore, defendants prayed that if, under the law, plaintiff was entitled or required to charge a higher rate, then defendants should be entitled to set off against such charges any part thereof exceeding the rate of 69 cents per 100 pounds.

Jury was waived, and upon trial to the court a decree was entered which found generally for plaintiff and against defendants upon the issues presented, and awarded plaintiff a judgment as prayed. Motion for new trial was overruled, and defendants appealed, assigning substantially that: (1) The trial court erred in sustaining plaintiff's demurrer to the 4th and 5th paragraphs of their answer; (2) the judgment was not sustained by the evidence; and (3) the trial court erred in refusing to sustain defendant's motion, made at the conclusion of all the evidence, to dismiss plaintiff's action, because in any event the district court had no jurisdiction of the subject matter, since it was exclusively vested in the Interstate Commerce Commission. We conclude that defendants' contentions should not be sustained.

With reference to the first assignment, it is generally the rule, by virtue of the provisions of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., and as more particularly applicable here, in Motor Carrier Act of 1935, being part II of the Interstate Commerce Act and cited as Title 49, Chapter 8, sections 301 to 326, inclusive, U.S.C.A., that while a motor vehicle common carrier's duly approved, filed, and published tariff over a stipulated or designated route is in force and effect, the classifications and rates named therein are binding by statute upon both the carrier and shipper. In the light thereof, any statements, agreements, or conduct of the carrier or its agents concerning such classifications and rates or the shipper's ignorance of them will not estop or prevent such carrier from collecting, or relieve the shipper from liability, for the proper published rate of which he is presumed to have knowledge. By analogy, that would also be conversely true, where the shipper sought to recover an overcharge from the carrier.

The reason for the rule is that the rights and duties of the carrier and shipper prescribed by the acts are for the good of the public, to protect it against secret rebates and discriminations, rather than for the enrichment of either the carrier or shipper at the expense of others, and any direct or indirect evasion of such rights and duties by either is expressly prohibited by the acts. Therefore, out conclusion is that the first assignment has no merit. See, 13 C.J.S., Carriers, s. 393, p. 873; Artic Roofings v. Travers, 3 Terry 293, 42 Del. 293, 32 A.2d 559; Western & Atlantic R. R. v. Aiken, 37 Ga.App. 271, 139 S.E. 914; Savannah, Florida & Western Ry. Co. v. Bundick, 94 Ga. 775, 21 S.E. 995; Sheldon v. Chicago, B. & Q. R. R. Co., 184 Iowa 865, 169 N.W. 189; Kanotex Refining Co. v. Atchison, T. & S. F. Ry. Co., 142 Kan. 139, 46 P.2d 16; and Edenton Cotton Mills v. Norfolk Southern R. R. Co., 178 N.C. 212, 100 S.E. 341.

The controlling principles aforesaid are also discussed and applied in cases from this jurisdiction. See, Fremont Milling Co. v. Chicago & N. W. Ry. Co., 101 Neb. 362, 163 N.W. 331; Brown Consolidated Milling Co. v. Chicago & N. W. Ry. Co., 101 Neb. 365, 163 N.W. 333; Chicago & N. W. Ry. Co. v. Mallory, 147 Neb. 548, 23 N.W.2d 735, 736.

The last-cited case is also authority for the applicable rule that: 'Where a jury is waived in a law action and the case tried to the court, the court's findings have the effect of a jury's verdict and will not be set aside on appeal unless clearly wrong.' There was primarily no dispute in the evidence upon...