Opinion
40542.
DECIDED MARCH 11, 1964.
Action to recover freight charges. Augusta Municipal Court. Before Judge Mixon.
Hull, Willingham, Towill Norman, Julian B. Willingham, for plaintiff in error.
Boller Yow, D. Field Yow, contra.
Under the agreed statement of facts in this case the carrier legally and properly collected the freight on the shipment of lumber from the nominee of the consignee who purchased the shipment from the consignee for a price which included the tariff charges. Under the agreed facts the nominee accepted delivery of the shipment at first and paid the freight. The railroad was not justified in rebating the freight charge to the nominee with knowledge that the nominee later refused the shipment without justification. Under such circumstances the original consignee cannot be held liable for the freight charges.
DECIDED MARCH 11, 1964.
Seaboard Air Line Railroad Company sued Richmond Lumber, Inc. to recover freight charges alleged to be due on a shipment of Douglas fir from Waterloo, Oregon, to Seminole Station, Florida, said freight charges being in the amount of $1,027.52. The defendant filed an answer denying liability for said freight charges. The Judge of the Municipal Court of the City of Augusta, trying the case on an agreed statement of facts without the intervention of a jury, found in favor of the defendant, to which judgment Seaboard Air Line Railroad Company excepts. The statement of facts upon which the case was tried is as follows:
"1. On September 10, 1959, John C. Taylor Lumber Sales, Inc. shipped to Richmond Lumber, Inc. one car Fir Lumber, Green Douglas Fir Utility Grade stamped lumber, for delivery to Seminole Station, Florida, at a price which included freight to the point of delivery. 2. Said shipment originated over Oregon Electric Railway Company under its uniform straight bill of lading, . . . 3. Said shipment of lumber was contained in Car NYC 194305. 4. That Richmond Lumber, Inc. sold said lumber to Audlane Lumber Builders Supply, Inc. (hereinafter called Audlane) at Seminole, Florida, a non agency station coming under the jurisdiction of the plaintiff's agent at Clearwater, Florida, at a price which included freight to the point of delivery. By custom of trade in the lumber business, Audlane was to pay freight upon receipt of shipment and credit was to be given therefor on purchase price by defendant. By letter dated September 19, 1959, defendant instructed the plaintiff's agent in Clearwater, Florida, to have said car of lumber delivered to Audlane, which was done. 5. Said sale of lumber to Audlane was made under West Coast Lumber Association rules under which Audlane, when it rejects shipment for under-grade, is obligated to have said shipment unloaded and stored for official inspection. The railroad is not a party to these rules and had no obligation under them. 6. The freight charge applicable to said shipment in accordance with published tariffs of the railroad, was $1,027.52. 7. Said car was placed at Seminole, Florida on September 29, 1959. According to custom of trade in the lumber business, Audlane paid the freight charges and forwarded the receipted freight bill to the defendant for credit upon the bill for the lumber. The defendant, in turn, forwarded the freight bill to John C. Taylor Lumber Sales, Inc. for which it was in turn credited upon the bill from Taylor Lumber Sales, Inc. for said lumber. 8. On October 8, 1959, plaintiff wired defendant that Audlane advised they were refusing car, . . . 9. On October 8, 1959, defendant wired plaintiff's agent at Clearwater, Florida, not to move NYC 194305 from Audlane siding, also all charges for their account, . . . 10. Upon receipt of the refusal of Audlane, defendant made immediate demand upon Audlane that said lumber be unloaded for inspection, which Audlane failed and refused to do. 11. As a result of said refusal, and in order to minimize damages, keep down demurrage and protect the property, the defendant, by letter dated October 8, 1959, subsequent to the wires above referred to, . . . directed the plaintiff to ship the car to Sirmons Supply Company, St. Petersburg, Florida, where the lumber was unloaded and stored by Sirmons at the request of and for the benefit of the defendant. The freight for the shipment from Seminole, Florida, to St. Petersburg, Florida, was paid by the defendant. 12. The said Audlane was advised of the action taken by the defendant, which advice is confirmed by letter dated November 19, 1959, advising that said lumber was on storage at Sirmons Supply Company, and charged to Audlane, where it could be given Association Inspection, if such was desired. Said letter further advised that said corporation was given credit on the account for the freight bill paid by it. 13. The said Audlane is still indebted to the defendant on said shipment. 14. It was subsequently determined by defendant that the lumber was up to grade. 15. The plaintiff was the delivering shipper to the destination at Seminole Station, Florida. 16. The plaintiff was advised not to refund the freight charge because it was a matter between defendant and Audlane, and the plaintiff was fully informed of the circumstances in the case. . . . 17. On September 23, 1960, after repeated demands by Audlane, the plaintiff refunded the freight payment that had been made by Audlane in the amount of $1,027.52. . . 18. Richmond Lumber, Inc. has received credit on the purchase of the lumber contained in said car from John C. Taylor Lumber Sales, Inc. for the amount of the freight. 19. Richmond Lumber, Inc. subsequently sold said lumber from said car at a price less than the balance owing upon the said account after crediting freight bill thereon, which loss resulted from a drop in the price of that grade lumber, which drop occurred between the date of the sale to Audlane and date of the subsequent resale."
The facts stipulated demanded a finding for the defendant, Richmond Lumber, Inc. Ordinarily a consignee, by accepting a shipment, becomes liable as a matter of law for the full amount of the tariff charges, whether they are demanded at the time of delivery or later. Pittsburgh, C., C. St. L. R. Co. v. Fink, 250 U.S. 577 ( 40 SC 27, 63 LE 1151); New York Central H. R. R. Co. v. York Whitney Co., 256 U.S. 406 ( 41 SC 509, 65 LE 1016); L. N. R. Co. v. Central Iron c. Co., 265 U.S. 59 ( 44 SC 441, 68 LE 900); 49 USCA 3 (2) Note 13. The same rule would apply to a nominee of the original consignee. Under the stipulation the shipment was delivered to and accepted in the first instance by Audlane Lumber Builders Supply, Inc., the nominee consignee, who purchased the shipment from Richmond Lumber, Inc., for a price which included the tariff charges. "Audlane" paid the freight charges and was credited with the amount of such charges by Richmond Lumber, Inc., which in turn was credited with the same amount by John C. Taylor Lumber Sales, Inc. on the purchase price of the lumber which included the tariff charges. At the time the plaintiff railroad received the tariff charges from "Audlane" the collection of the charges from "Audlane" was legal and proper in every respect. This fact takes the case out of the class of cases which hold that a carrier does not lose its claim upon the original consignee for freight charges by delivering the goods to a nominee of the consignee without collecting the freight charges from the nominee of the consignee before delivery as directed by the consignee. The refund of the charges to "Audlane" does not make the rule above stated applicable to this case under the facts because the facts show that "Audlane" owed the charges paid by it and that "Audlane" was not justified in later refusing to take the shipment. In refunding the charges to "Audlane" after full knowledge of all the facts Seaboard attempted to adjudicate and determine the dispute between "Audlane" and Richmond Lumber, Inc. The refund was a voluntary payment under Code § 20-1007. The contention by Seaboard that Richmond Lumber, Inc., assumed dominion over the shipment at Seminole Station, Florida, and treated the shipment unconditionally as its own is refuted by the stipulation that Richmond Lumber, Inc., as a result of the refusal by "Audlane" to utilize the shipment, and in order to minimize damages, keep down demurrage and protect the property, shipped the lumber to St. Petersburg, Florida, where it was unloaded and stored for the benefit of Richmond Lumber, Inc. See also, paragraph 12 of the stipulation. This action on the part of Richmond Lumber, Inc., was not exclusive dominion adverse to "Audlane" but was in the interest and solely for the benefit of "Audlane" and in compliance with the defendant's duty to minimize its damage which resulted from "Audlane's" breach of contract. Such action on the defendant's part did not have the effect of giving it the benefit of the shipment to Seminole, Florida, so as to cause it to be indebted for the freight to Seminole so as to justify the plaintiff in deciding that the defendant owed the freight instead of "Audlane." For a discussion of the purposes of the Hepburn Act and for an instance where the carrier was held to be estopped by its own conduct see Griffin Grocery Co. v. Pennsylvania R. Co., 93 Ga. App. 546 ( 92 S.E.2d 254).
The court did not err in finding for the defendant.
Judgment affirmed. Frankum and Pannell, JJ., concur.