Dreyfuss v. Pennsylvania Railroad

Bijur, J. Plaintiff was the consignee of two carloads of onions shipped August 18, 1914, from Stockton, Cal., over a route, specified in the bill of lading, concluding with carriage from Chicago to New York over the Erie railroad. Owing to circumstances which are immaterial to the present controversy, the Erie railroad was unable to deliver these two cars conveniently in New York city, and, therefore, transferred them at Waverly Transfer to the Pennsylvania railroad, which brought them to this city. The Pennsylvania railroad presented to the consignee a bill for transportation which comprised a charge of seven cents per 100 pounds for service -of the Pennsylvania railroad, and one dollar and twenty-five cents for the transcontinental carriage. Plaintiff at once called the attention of the Pennsylvania railroad agent to the fact that the correct charge for the transcontinental carriage was only one dollar and five cents per 100 pounds, and tendered the corresponding amount, namely, one dollar and twelve cents per 100 pounds, which tender was refused. On the afternoon of the same day, September 3, 1914, the Pennsylvania railroad having, on inquiry, ascertained that the lower r'ate was a lawful one, and that the Erie was willing to reduce the bill accordingly, delivered a “ corrected bill ” at three forty-five p. m. at the office of the plaintiff. No response having been received the Pennsylvania railroad sold the onions at auction on the morning of September 5, 1914, and the plaintiff sues [583] for conversion of Ms goods. The defendant counterclaims for the freight charges. The first question presented for decision is the correctness of the first demanded rate. The Southern Pacific tariff, effective August 18, 1914, contains two “ items,” 755 and 650 A, applicable to this shipment. The former shows a rate of one dollar and twenty-five cents per 100 pounds to New York and one dollar to Chicago; the latter, a rate of seventy-five cents per 100 pounds to Chicago. Incidentally it may be remarked, that on a careful examination there might be a question whether item 755 applies to the present case, where, as I understand it, the shipment was straight car-loads of onions, but I shall assume that item 755 does apply. There was also in force on •August 18, 1914, an Brie railroad rate on onions from Chicago to New York, fifth class, of thirty cents" per 100 pounds. There are thus apparently two rates applicable to the shipment in question, one a through rate of one dollar and twenty-five cents per 100 pounds, and the other, by combination of intermediate rates, of one dollar and five cents per 100 pounds. The Southern Pacific tariff also contains item "40 A, to which no reference is made in the briefs of either side, and which apparently was not called to the attention of the learned judge below. This item reads as follows: ‘ ‘ Item 40-A. If the aggregate of the intermediate rates, or the aggregate of the rates applying from points of origin to California Terminals (named, on pages 1 and 2), and the rates shown herein as applying from said California Terminals to point of destination, makes less than the through rates named in this tariff or as supplemented, the combination rates so made will apply. ’ ’ Moreover, even apart from this provision of the [584] tariff, the interstate commerce commission has held repeatedly that, where a carrier has published conflicting rates effective contemporaneously in the same tariff, , the shipper is entitled to the lower of these rates. See Conference Baling No. 239 of December 6, 1909, and references therein. Also Laning-Harris Coal Co. v. M. P. R. Co., 13 I. C. C. R. 154,158,159. It is, therefore, apparent that the only lawful rate in force to cover this shipment was the one of one dollar and five cents, and that when the defendant refused to deliver the consignment to plaintiff unless he should pay the higher rate it was insisting on an unlawful charge. It could not excuse itself on the theory that it had received these goods from the Brie railroad and was bound to pay or collect whatever the Brie charged. Defendant was as much bound to know the correct rate on the shipment which it took over as was the plaintiff. Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97; Adams Ex. Co. v. Croninger, 226 id. 491, 509. The learned judge below seems to have been of opinion that the defendant was justified in collecting whatever the Brie railroad charged, but there is no authority for this view. The two cases cited in the opinion below which have some bearing on this question are not in point. Berry Coal & Coké Co. v. Chicago, P. & St. L. R. R. Co., 116 Mo. App. 214, concerned a shipment which was not a through bill of lading, and in Glover v. Cape G. & S. R. Co., 95 Mo. App. 369, the bill of lading did not specify a route, as it does in the case at bar. In this case, therefore, it was not possible for the final carrier to ascertain, either from the face of the papers submitted to it, or by reasonable inquiry, what the appropriate rate'may have been. The court below also regarded the question which [585] rate was the lawful one as a matter to be determined by the interstate commerce commission. But the issue presented here is not as to the reasonableness of a rate of which no doubt the federal commission would have exclusive jurisdiction, but as to the correct application of a published tariff—a matter palpably cognizable by this court. P. R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121. There remains, therefore, to be considered only the effect of the conduct of the defendant in sending a ‘ ‘ corrected bill ’ ’ and the sale of these onions about a day and a half thereafter. In passing it may be remarked that the evidence is not perfectly clear as to the dates and that plaintiff-appellant has some ground for its claim that only a night intervened between the sending of the bill and the sale of the onions, but I am accepting defendant’s version of the evidence. I do not think that a day and a half or two days was a reasonable time, under the circumstances, even assuming all the facts to be as defendant claims them to have been, for plaintiff to meet the corrected charge. Apart from the fact that one of the defendant’s employees testified that if a perishable commodity is not taken away it is 'sold within a reasonable time, namely, three days, there was no adequate proof that these onions were perishable, and certainly none that they required to be disposed of in the precipitate way shown in the case at bar. Judgment reversed and new trial ordered, with costs to appellant to abide the event. Guy, J., concurs.