Where the shipper has paid full freight charges computed on full
weight of shipment equalling minimum capacity of cars applied for
and permitted for the class of traffic by the filed tariff, he
cannot afterwards be compelled to pay an excess on recomputation of
charge based on minimum capacity of larger cars supplied by the
carrier on account of shortage of the size applied for, all parties
having acted in good faith.
Without modifying the rule announced in former decisions in
respect to the obligation on both carrier and hipper to strictly
observe the lawful tariff,
held, under the special
circumstances of this case, failure to show that the carrier did
not comply with the rules in regard to noting the fact that the
smaller cars were supplied for its own convenience does not require
the shipper to pay charges on the marked capacity of the car
actually used.
169 Mo.App. 109 affirmed.
The facts are stated in the opinion.
Page 236 U. S. 720
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
A controversy between the railway company and defendant shipper
concerning freight charges was adjusted by computing them upon the
actual weight of the merchandise transported. Afterwards, claiming
that the reckoning should have been upon the minimum capacity of
cars used, the railway company sued for the difference between the
two results. Defendant relied upon the settlement and also full
payment; the trial court directed a verdict for it; this was
approved upon appeal (169 Mo.App. 109), and the cause is here by
writ of error.
Plaintiff in error operates a road extending northward from Fort
Worth, Texas, which connects through an intermediate one with the
St. Louis & San Francisco Railroad, whose line reaches
Carthage, Missouri, where defendant is engaged in quarrying,
selling, and shipping stone. Having been advised by plaintiff in
error's commercial agent that the rate on stone in cars of 50,000
pounds capacity to Fort Worth was 27 1/2 cents per hundred,
defendant contracted to deliver five carloads to a purchaser
located there. The local agent of the initial carrier at Carthage
was informed that such cars would be required for the proposed
shipments, and in November and December, 1908, he was requested by
telephone to supply them. Cars of that size were scarce, and, for
its own convenience, the railroad company furnished five larger
ones -- 60,000 to 88,000 pounds -- in which the shipments were
made, the weight in each instance being less than the marked
minimum, but appropriate for a 50,000-pound car.
Page 236 U. S. 721
When these arrived at Fort Worth, charges of 27 1/2 cents per
hundred, marked capacity, were demanded. They were paid, and
immediately thereafter the shipper presented a claim for the amount
exacted above a reckoning based on actual weights. Careful
investigation was promptly made, and in February, 1909, the excess
was refunded. All parties acted with knowledge of the facts, in
good faith, and without purpose to evade the law.
Upon the theory that it was bound to collect freight charges
according to car capacity, and that the settlement was prohibited
by regulations of the Interstate Commerce Commission, two years
thereafter, plaintiff in error commenced this action to recover
what it had repaid.
At the trial, the waybills were not introduced, their absence
was not accounted for, and their contents do not appear. No
carrier's order book was produced. The shipper received no bill of
lading, but the railway company offered to introduce alleged copies
of five signed by the Carthage agent. They were rejected because
not properly identified, and no further effort was made to prove
their contents. Five so-called shipping tickets were put in
evidence. These requested the initial carrier to accept the
freight, and upon them appears the following, signed by its
agent:
"This shipment is tendered and received subject to the terms and
conditions of the company's uniform bill of lading. All conditions
herein to the contrary are cancelled."
The applicable duly filed tariff schedule specified freight rate
on stone between Carthage and Fort Worth as 27 1/2 cents per
hundred when loaded in 50,000-pound cars. It also provided that
"minimum weight will be the marked capacity of car on stone," and
item No. 81 was in these words:
"The following rule will be observed in assessing the freight
charges for the minimum weights, according to capacity of car:"
"When the carrier cannot furnish car of capacity ordered by
shipper, and for his own convenience
Page 236 U. S. 722
provides a car of greater capacity than the one ordered by the
shipper, it may be used on the basis of the minimum carload weight
fixed in tariff applied on size of car ordered by shipper, but in
no case less than the actual weight. Capacity of car ordered,
number of the order, and date of same to be shown in each instance
on the bill of lading and the carrier's waybill."
"In no case must shipment be billed at minimum weight of a car
of less capacity than in service on initial line."
The so-called shipping tickets may not be treated as bills of
lading within the requirement; upon their face, they refer to "the
company's uniform bill of lading," and plaintiff in error undertook
to introduce alleged copies of bills of that character. The facts
concerning the waybills are undisclosed. It is not possible,
therefore, to ascertain from the record the contents of any of the
bills.
In effect, the railway company now contends that, as the
evidence fails affirmatively to show the notations required by Rule
81, the law imposes an absolute obligation upon the shipper to pay
charges estimated upon the marked capacity of cars utilized,
notwithstanding the settlement and good faith of all parties. To
this position we cannot give assent. In the circumstances, the
initial carrier was charged with the duty of making these
notations, and, for the purposes of this suit, the shipper might
assume compliance with that duty -- he was not required to
establish actual performance. He only sought and received what was
authorized by the tariff on file. Larger cars than he requested
were supplied for the carrier's special accommodation, and the
commands of the applicable rule addressed to the latter imposed the
clerical task of recording information within its peculiar
knowledge upon documents for whose preparation it was
responsible.
Nothing herein is intended to modify conclusions announced in
former opinions in respect of the obligation
Page 236 U. S. 723
upon both carrier and shipper strictly to observe lawful
tariffs. We determine only the narrow point adequate for
disposition of this cause upon the particular facts revealed by an
unsatisfactory record.
The judgment of the court below is
Affirmed.