Stewart v. Comer

Simmons, Chief Justice. In fissMng 'the 'Mil ¡of lading -.the carrier reserved an option as to the mode of sMpment, and the price was to757 be canbrlolled by ftthie method (of 'shipment (adopted. If the plate glass was shipped in a box-car, the price for the ■freight was to be $1.14 per hundred pounds actual weight; .if shipped upon a flat car, the rate was to be 73 cents per .hundred pounds for 10,000 pounds. Three plates of the glass were shipped ion 'a flait ‘car, for which, .'the darrier •charged $73.00; and five plates were shipped in a box-car, for which, tlb'e carrier ichlarged $14.31. It was mot ciom- ■ template! in this contract of affreightment that the glass ¡should be divided and part shipped in a box-car and part •on a flat car. We think that the contract means that the •eight plates of glass should all be shipped by one method ■either in a box-car or on a flat car. The weight of 'the eight plalbes of glass 'appears to have been 1,550 pounds. If all of them had been shipped in a box-car, the freight would have been $17.67; if all had been shipped on a flat car, the freight would have been $73.00. The carrier charged $87.3Í for the two shipments. This, without explanation on the part of the carrier, is an overcharge according to the contract. Section .'2316 of the Civil Code provides, in subábamce, 'that where .any common carrier shall demand and receive, for goods shipped from within or without this State to any point ir. this State, any overcharge or excess of freight over and beyond ¡the proper or oomtnadt ralbe of freight, and a. demand in writing for the return or repayment of such overcharge is made by the person paying the same, the common carrier shall refund said overcharge within thirty ■days from said demand; and if it shall fail or refuse to do ¡so within thirty days, then it shall be liable to said person making the overpayment in an amount double the amount •of the overpayment. This being prima facie an overcharge, the plaintiff having paid it and given the written notice required, and the common carrier having failed to •refund it within the thirty days, the plaintiff was entitled under the code to recover it in an action brought for that [758] purpose and also to recover the penalty imposed. It will, be observed ithlalt the penalty is not inflicted upon -the-common carrier for making the overcharge, but for its refusal to refund within thirty days after demand is made in writing. So it seems that where there is an overcharge of freight by a common carrier and tbe person to whom the-shipment is consigned pays it and makes demand in writing upon the carrier to refund such overcharge, and theeaiuñer fails (to do so within .tikkity 'days, ias la matter of law such common 'carrieir is liable both for the overcharge and.' the penalty. It is contended that the common carrier, having reserved to itself in the contract an option like the one in the-present case, has the right to exercise its option to advance-its own interest and not the interest of the shipper, and. that inasmuch as this option was to ship the glass in either kind of car, it could divide the shipment as it did, if it was-to its interest to do so. The rule, however, seems to be the-contrary of this. It is laid down in Hutchinson on Carriers, section 313a, -ais follows: “Where a ooii'toaiet foir the* transportation of goods gives the carrier an option between* modes of transportation, this option must be exercised with-regard for -tbe interests of '(the shipper; -and it is a breach of’ the contract to exercise it to his disadvantage, unless it is* done in good faith and under circumstances which seem to-* demand it.” See also Blitz v. Union Steamboat Co., 51 Mich. 558; s. c. 17 N. W. R. 55, decision by Judge Cooley.. We -think therefore 'tlhlalt where -a carrier has an option*: of -this land, he amust exercise it reasonably, under the* circumstances, to the beet intereabs of -the «consignee or* shipper; and it would be a breach of contract to exercise-it to -the diisaidvanltage of Itthe consignee ox shipper, unless-, it be done in good faith and under circumstances which-seem to require it. We think also that the burden is upon* the carrier to show that it did exercise the option reasonably under the circumstances. If the carrier adopts a mode759 of transportation which involves the payment of a higher rate of freight rather than a lower, it may show that it asked for and obtained direction from the shipper or consignee to employ the more expensive mode; or that, because of its inability to procure the means of shipment by the cheaper method, it was reasonably necessary, in view of the exigencies of the particular case and in order to complete the contract of carriage, to resort to the other and more expensive mode; or it may show other facts and circumstances which would justify it in exercising its option in a manner disadvantageous to the shipper or consignee. Judgment reversed. All the Justices concurring.