A contract by a railroad to furnish cars on a certain day for
interstate transportation as common carrier is void if not provided
for in the published tariffs.
Chicago & Alton R. Co. v.
Kirby, 225 U. S. 155. P.
264 U. S.
561.
66 Mont. 100 reversed.
Certiorari to a judgment of the Supreme Court of Montana
affirming a judgment against the agent appointed by the President
under the Transportation Act on a special contract to furnish cars,
made by a station agent with the plaintiff during the period of
federal control of railroads.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
While the railroads were under federal control, Cornwell ordered
of a station agent empty cars to be ready
Page 264 U. S. 561
October 2, 1918, for loading with cattle to be transported in
interstate commerce as common carrier. This action against Davis,
the Agent of the President designated under Transportation Act of
1290, was brought in a state court of Montana to recover damages
for failure to supply the cars. The plaintiff sued on an express
contract to furnish them on the day named. It was not shown, or
contended, that the published tariffs governing the contemplated
shipment provided in terms for such a contract. The defendant asked
for a directed verdict; the request was refused, and the jury was
instructed that, if the promise was made, the defendant was liable
for its breach even if the carrier was unable to furnish the cars.
A verdict was rendered for the plaintiff; the judgment entered
thereon was affirmed by the highest court of the state, and the
case is here on writ of certiorari under ยง 237 of the Judicial Code
as amended. 262 U.S. 740. Whether, under the Interstate Commerce
Act as amended, the express promise to furnish cars was valid is
the only question requiring decision.
The transportation service to be performed was that of common
carrier under published tariffs, not a special service under a
special contract, as in
Chicago, Rock Island & Pacific
Railway Co. v. Maucher, 248 U. S. 359. The
agent's promise that the cars would be available on the day named
was introduced to establish an absolute obligation to supply the
cars, not as evidence that the shipper had given due notice of the
time when the cars would be needed, or as evidence that the carrier
had not made reasonable efforts to supply the cars. The obligation
of the common carrier implied in the tariff is to use diligence to
provide, upon reasonable notice, cars for loading at the time
desired. A contract to furnish cars on a day certain imposes a
greater obligation than that implied in the tariff. For, under the
contract, proof of due diligence would not excuse failure to
perform.
Page 264 U. S. 562
Chicago & Alton R. Co. v. Kirby, 225 U.
S. 155, settled that a special contract to transport a
car by a particular train or on a particular day is illegal when
not provided for in the tariff. That the thing contracted for in
this case was a service preliminary to the loading is not a
difference of legal significance. The contract to supply cars for
loading on a day named provides for a special advantage to the
particular shipper as much as a contract to expedite the cars when
loaded. It was not necessary to prove that a preference resulted in
fact. The assumption by the carrier of the additional obligation
was necessarily a preference. The objection is not only lack of
authority in the station agent. The paramount requirement that
tariff provisions be strictly adhered to, so that shippers may
receive equal treatment, presents an insuperable obstacle to
recovery.
*
Reversed.
*
Compare Saitta & Jones v. Pennsylvania R. Co.,
179 N.Y.S. 471;
Underwood v. Hines, 222 S.W. 1037;
Chicago, Rock Island & Pacific Ry. Co. v. Beatty, 42
Okl. 528, 533, 534. Of the cases relied upon by respondent,
Wood v. Chicago, Milwaukee & St. Paul Ry. Co., 68
Iowa, 491, and
Harrison v. Missouri Pacific Ry. Co., 74
Mo. 364, arose before the enactment of the Act to Regulate
Commerce.
Easton v. Dudley, 78 Tex. 236,
Nichols v.
Oregon Short Line R. Co., 24 Utah 83,
Pittsburgh,
Cincinnati, Chicago & St. Louis Ry. Co. v. Racer, 10
Ind.App. 503,
Mathis v. Southern Ry. Co., 65 S.C. 271,
International & Great Northern R. Co. v. Young, 28
S.W. 819,
Outland v. Railroad Co., 134 N.C. 350,
Chattanooga Southern R. Co. v. Thompson, 133 Ga. 127,
Midland Valley R. Co. v. Hoffman Coal Co., 91 Ark. 180,
and
Oregon Ry & Nav. Co. v. Dumas, 181 F. 781, were
decided after the enactment of the Act to Regulate Commerce, but
before the decision of the
Kirby case (1912).
McNeer,
Talbott & Johnson v. Chesapeake & Ohio Ry. Co., 76
W.Va. 803, and
Stewart v. Chicago, Rock Island & Pacific
Ry. Co., 172 Iowa 313, were decided after the
Kirby
case, but the rule there declared appears not to have been called
to the attention of the court.
Clark v. Ulster & Delaware
R. Co., 189 N.Y. 93, and
Texas Midland R. Co. v.
O'Kelley, 203 S.W. 152, dealt with intrastate shipments.