January 12, 1931.
1. CARRIERS. Privilege extended by carrier of unloading part of interstate shipment with through rate privilege at intermediate point was illegal, tariffs permitting no such privilege (49 U.S.C.A., section 6(1) and (7)).
The shipment consisted of two carloads of iron beds consigned from K., Wis., to M., Miss., and bill of lading contained provision for stop-over at T., Ala., to partly unload. One of cars moved through to M., Miss., without stoppage, and one car was stopped at T., Ala., and partly unloaded, and balance of load was then moved from T., Ala., to M., Miss., on original bill of lading. 49 U.S.C.A., section 6(1) provides that tariffs shall state separately all privileges granted or allowed, and section 6(7) provides that no carrier shall extend to any shipper any privileges or facilities, except such as are specified in tariffs.
2. CARRIERS. Evidence.
Carrier and consignee were affected with notice of tariffs and were presumed to know law.
There is always presumption in law of right doing.
Where consignee was improperly permitted to unload part of interstate shipment at intermediate point, consignee was liable for through rate, over entire distance, plus local rate on goods removed from destination back to intermediate point (49 U.S.C.A., section 6(1) and (7)).
APPEAL from circuit court of Lauderdale county. HON. J.D. FATHEREE, Judge.
Bozeman Cameron, of Meridian, for appellant.
The only lawful thing which the railroad company could do under the circumstances was to permit the consignee, Hulett, to stop the car at Tuscaloosa for partial unloading and to collect the freight from Kenosha to Tuscaloosa as fixed by the tariffs, and then, when the car moved from Tuscaloosa to Meridian, to charge the tariff rate from Tuscaloosa to Meridian on that part of the shipment which moved from Tuscaloosa to Meridian.
Interstate Commerce Act, U.S.C.A., Title 49.
An agreement with any particular shipper to expedite a shipment at regular rates, even where no rate has been established for special expediting, is an unlawful discrimination within the meaning of this Act; that a carrier cannot legally contract with a particular shipper for an unusual service, unless he make and publish a rate for such service equally open to all.
Railroad Co. v. Kirby, 225 U.S. 155, 56 L.Ed. 1033; Bergin v. M.K. T. Ry. Co., 105 S.W. 1184; C. A. Ry. Co. v. Kirby, 225 U.S. 156; Lexington Compress Co. v. Y. M.V.R. Co., 131 Miss. 49, 95 So. 92; Priebe v. Southern Railway Co., 200 Ala. 81, 75 So. 409; Sheldon v. Chicago, etc., Ry. Co., 169 N.W. 189; L. N.R.R. Co. v. Cleaver, 211 Ala. 661, 101 So. 597.
A strict adherence to the published rates and charges is absolutely essential to avoid discrimination and preference between shippers. Neither estoppel, ignorance of the shipper, nor a mistake of carrier's agent can defeat the prime purpose of the law that the shipper must pay and the carrier must collect, the lawful published rate.
Pittsburgh, etc., R. Co. v. Fink, 250 U.S. 577.
If it be conceded that under the conference rulings cited the carrier should have called the shipper's attention to the fact that there was no partial unloading privilege at Tuscaloosa, it does not appear in this record that there was any other route from Kenosha to Meridian passing through Tuscaloosa, which provided any such unloading privilege; nor does it appear that there was any combination of rates available under the schedules permitting the partial unloading at Tuscaloosa which would have been less than the rates sued for in this case.
The courts will not take judicial notice, either of conference rulings made by the Interstate Commerce Commission, or of their orders, or even of their published reports; but if any of them are relied upon by any litigant, they must be both pleaded and proven.
Robinson v. B. O.R.R. Co., 222 U.S. 506 (511), 56 L.Ed. 288.
D.C. Callon, of Meridian, for appellee.
It is true in the agreed statement of fact it was affirmatively stated that the tariffs of the Alabama Great Southern Railroad, over which the shipment moved to Tuscaloosa and thence to Meridian, did not provide for a stop-over privilege at Tuscaloosa for partial unloading, from which appellant concludes that the through rate should be set aside and shipment be subjected to a combination of three local rates. We submit, however, that the failure of the tariff governing the through rate to specifically provide for a stop-over privilege, is not controlling, as this tariff in question, as is true with all tariffs, carries a blanket provision with respect to privileges of this character.
We submit that the burden of proving the rate inapplicable under the attending circumstances was upon appellant (plaintiff below), which burden they have failed to carry.
The appellant contends that because the conference rules of the Interstate Commerce Commission were rescinded in their entirety, by an executive order of the commission, that such rules now have no force or effect. We point to the fact that these rules were in effect and represented the law, as defined by the Interstate Commerce Commission, at the time when this cause of action arose.
As further evidence of the probative value of these rules, we refer to Jefferson Lumber Co. v. Mobile Ohio R.R. Co. et al., 40 I.C.C. 43.
Had this shipment in question moved to Meridian without stopping at Tuscaloosa, it would have been subjected to the tariff charge as published under appellant's interpretation. But for the service of stopping this car at Tuscaloosa, thereby transporting a lesser tonnage to Meridian, they asked for an additional amount of one hundred eighty-one dollars and forty-two cents and it therefore appears that to exact this amount for a service such as performed is prima facie unreasonable and contravenes the first section of the Act.
The mere fact of applying the combination of local rates shows a non-compliance with the provisions of the bill of lading, because the bill of lading carried the through published rate, and to apply a combination of locals would destroy the provision that the through rate would apply. Therefore, it is beyond question a fact that all of the provisions of the bill of lading could not be complied with. There was therefore a conflict in this instrument and under the conference rulings of the commission referred to, the initial carrier should have removed the conflicting provisions or assumed liability.
If the court holds that the conference rulings are properly before them, then we submit that they have a direct bearing on the case at bar, and that the court should take judicial notice thereof.
The carriers are under obligation to charge the cheapest available rate via the route of movement. If the published through rate is for any reason inapplicable then the cheapest rate, whether joint, through, or combination, must be applied. The sum of the locals to and from Meridian, Mississippi, not being before the court, we do not believe should be considered, but the law does impose upon the carrier the duty of charging the cheapest rate via the route of movement, and the burden of proof rests upon the carrier to show that the rate which they charged, or seek to charge, is the cheapest published rate.
Appellant brought this action against the appellees in the county court of Lauderdale county to recover the sum of one hundred eighty-one dollars and forty-three cents, an alleged undercharge on two carloads of iron beds shipped to the appellees from Kenosha, Wisconsin, to Meridian, in this state.
There was a trial on agreed facts between the parties, resulting in a judgment in appellees' favor, from which the appellant appealed to the circuit court where the judgment of the county court was affirmed, and from the judgment of the circuit court appellant prosecutes this appeal.
The facts agreed upon between the parties were made a part of the record, and, leaving off the formal parts, are as follows:
"On about October 21, 1925, the Simmons Bed Company, of Kenosha, Wisconsin, shipped from that point two carloads of iron beds with metal springs consigned to F.A. Hulett Son, Meridian, Mississippi, routed via EJE CCCSTL and Southern via Birmingham. F.A. Hulett Son requested the shipper to provide for the stoppage of said shipment at Tuscaloosa, Alabama, for partly unloading at Tuscaloosa, and the bill of lading contained the following provision written thereon: `Stop over at F.A. Hulett Son, Tuscaloosa, Alabama to partly unload.' The bill of lading was issued by Chicago Northwestern Railway at Kenosha. Wisconsin. The shipper ordered a fifty-foot car for said shipment, but the railroad being unable to furnish a fifty-foot car, furnished instead two smaller cars into which the shipment was loaded and the two cars moved as one shipment. One of the cars moved through to Meridian without stoppage at Tuscaloosa and one of the cars was stopped at Tuscaloosa and partly unloaded by Hulett, and the balance then moved from Tuscaloosa to Meridian on the original bill of lading. The weight of the freight in the car which stopped at Tuscaloosa was thirty-two thousand three hundred pounds, before being partly unloaded at Tuscaloosa, and the weight of the freight left in the car after partly unloading, which moved from Tuscaloosa to Meridian was eighteen thousand two hundred pounds. The through rate on said shipment from Kenosha, Wisconsin, to Meridian, Mississippi, as fixed by the tariffs of the originating carrier and the other carriers handling the shipment was seventy-eight cents per one hundred pounds. If the through rate from Kenosha to Meridian, being seventy-eight does not apply, then the minimum weight provided by the tariffs for the car which was stopped at Tuscaloosa was thirty-two thousand four hundred pounds, north of the Ohio River; that is to say from Kenosha to Cincinnati, and south of the river the minimum weight was thirty thousand pounds, applying from Cincinnati to Meridian. The tariffs of the Alabama Great Southern Railroad Company over which the shipment moved to Tuscaloosa, and upon which railroad Tuscaloosa is situated, did not provide for any stop-over privilege at Tuscaloosa for partly unloading. The local rate on said shipment from Tuscaloosa to Meridian, as provided by the tariffs of the said Alabama Great Southern Railroad Company is seventy-two cents per one hundred pounds. Hulett Son paid the freight on both of these cars at the through rate of seventy-eight cents per one hundred pounds, and by a miscalculation they paid ten dollars and ninety-two cents over the amount actually due at the said seventy-eight-cent rate. There is no rate published from Kenosha to Tuscaloosa. The rate from Kenosha to Cincinnati is thirty-one and one-half cents per one hundred pounds, which applied to thirty-two thousand four hundred pounds, makes one hundred two dollars and six cents. The rate from Cincinnati to Tuscaloosa is sixty-two cents per hundred pounds, which applied to the actual weight of thirty-two thousand three hundred pounds makes two hundred dollars and twenty-six cents; the sum of the two being three hundred two dollars and thirty-two cents. Hulett Son paid the agent at Tuscaloosa one hundred nine dollars and ninety-eight cents, leaving a balance of one hundred ninety-two dollars and thirty-four cents as per the above calculation. The freight on the eighteen thousand two hundred pounds moving from Tuscaloosa to Meridian, at seventy-two cents per one hundred pounds amounted to one hundred thirty-one dollars and four cents. Seventy-two cents is the local rate on such shipment from Tuscaloosa to Meridian as provided by the published tariff of said A.G.S. Railroad. Hulett paid the full freight on the second car, which moved from Kenosha to Meridian without stopping at Tuscaloosa, and by some miscalculation paid ten dollars and ninety-two cents excess, for which he is entitled to credit, which leaves the difference of one hundred eighty-one dollars and forty-two cents claimed by the railroad company.
"If, under the tariffs, the car which was stopped at Tuscaloosa was entitled to move from Kenosha to Meridian with the right of stoppage for partial unloading at Tuscaloosa, at the through rate of seventy-eight cents, then the full amount of freight has been paid. If under the tariffs the railroad company is required to collect freight on the shipment from Kenosha to Tuscaloosa at the tariff rate applying to a shipment from Kenosha to Tuscaloosa, and then to collect the local rate from Tuscaloosa to Meridian, on the shipment remaining in the car after partial unloading, which moved from Tuscaloosa to Meridian, then Hulett owes the one hundred eighty-one dollars and forty-two cents sued for."
Section 6(1), U.S.C.A., title 49, provides that tariffs shall state separately all privileges granted or allowed, and, in section 6(7) of the act, it is provided that no carrier shall participate in the transportation of the property unless the rates and charges therefor have been filed and published in accordance with the statute; "nor shall any carrier charge . . . or collect . . . a greater or less or different compensation for such transportation of . . . property, or for any service in connection therewith, . . . than the rates . . . and charges . . . specified in the tariff filed and in effect at the time . . . nor extend to any shipper or person any privileges or facilities in the transportation of . . . property, except such as are specified in such tariffs."
Appellant's contention is that, under the Interstate Commerce Act, it was prohibited from extending to appellees the unloading privilege at Tuscaloosa, a point short of the destination of the car, and then moving the car with the remaining load on to Meridian under the through rate of seventy-eight cents per one hundred pounds.
It clearly appears that, under the Interstate Commerce Act, the unloading privilege at Tuscaloosa extended by appellant to appellees was illegal. The tariffs permitted no such privilege. Both the appellant and the appellees were affected with notice of the tariffs, and are presumed to have known the law; and, of course, that is true of the initial carrier.
Nevertheless, it is well known that the common carrier railroads of the country have much more thorough and accurate knowledge of their schedules of rates than have the shipping public. As a rule, the tariffs are initiated by the railroads after having been prepared by railroad tariff experts, while the shipping public, with probably few exceptions, have no tariff experts to advise them. Still, as stated, both the railroads and the shipping public are affected with notice of the requirements of the Interstate Commerce Act, and the tariffs in force thereunder.
However, there is nothing in the record in this case to indicate that the unloading privilege was not extended to appellees in perfect good faith. Both parties doubtless believed that, under the tariffs, such a privilege was allowable. There is always a presumption in law of right doing, not wrong doing.
The appellees, under the through rate of seventy-eight cents, could have had the entire shipment delivered to them at Meridian, and then reshipped back to Tuscaloosa from Meridian the goods that were unloaded at the former place on the stop-over privilege. If that course had been pursued, the appellees would have been liable for the through rate of seventy-eight cents from Kenosha to Meridian, plus the local rate from Meridian to Tuscaloosa on the part of the car shipped to the latter place. Instead of these two rates, the appellant is seeking to recover the aggregate local rates of all carriers from Kenosha to Tuscaloosa on the car partially unloaded at the latter place, and, in addition, the local rate from Tuscaloosa to Meridian on the balance of the load, which combined rates aggregate materially more than the through rate on the car from Kenosha and the local rate from Meridian back to Tuscaloosa on the goods there unloaded.
We know of no authority either for or against so holding, but it appears to us that it would come nearer doing natural justice to hold the appellees liable for the through rate on the car from Kenosha to Meridian, plus the local rate on the goods removed from the car at Tuscaloosa, from Meridian back to Tuscaloosa. We think to so hold is justified by the fact of the appellant's superior position and knowledge over appellees in reference to the tariffs, and that such result will be more just than the one contended for by appellant.
Appellees contend that the appellant ought to be driven to suit for the undercharge against the initial carrier at Kenosha, which illegally inserted the stop-over stipulation in the bill of lading covering the shipment. The trouble about that position is that it would not meet the requirements of the Interstate Commerce Act. There would still exist a discrimination in favor of appellees against other shippers. Other shippers, under like conditions, would be required to pay the aggregate of the local rates from Kenosha to Tuscaloosa, plus the local rate from the latter place to Meridian on the balance of the load in the car. Plainly, such a discrimination is prohibited by the Interstate Commerce Act, and would not be remedied by driving the appellant to a suit for the undercharge against the initial carrier.
The judgment is therefore reversed, and the case remanded to the circuit court, where it appears from the record that the necessary calculations can be more conveniently made and proper judgment entered.
Reversed and remanded.