Pharr Cotton Co. v. Davis

Luke, J. (After stating the foregoing facts.) The controlling question in this case is whether or not the words “Via Union Compress at Augusta,” written on the face of the bills of lading issued by the defendant to the plaintiff, amounted to a binding and enforceable contract requiring the defendant to compress, at Augusta, Ga., cotton delivered to the defendant at Washington, Ga., for shipment? All the shipments involved in this suit were shipments from a point in the State of Georgia to points outside the State, and were, therefore, subject to the act to regulate commerce between the States. This act, which is commonly known as the interstate-commerce act, provides, among other things, that “Every common carrier . . shall file with the commission, . . and print and keep open to public inspection, schedules showing all the rates. . . The schedules printed as aforesaid . . shall contain the classification of freight in force and shall also state separately all terminal charges and all other charges which the commission may require, all privileges or facilities granted or allowed and any rules or regulations which in anywise change, affect, or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee.” 4 Fed. Stat. Ann. 406, § 6 (U. S. Comp. Stat., § 8569). It therefore becomes necessary to determine whether or not there was anything filed with the interstate-commerce commission upon the subject of compressing cotton. That there was is shown conclusively by the following provisions of the schedules and tariffs filed by the defendant with the commission: “The rates published in this tariff apply only on compressed or uncompressed cotton (except sea island cotton) in bales, carrier’s option to compress, and when shipped subject to the conditions of the carrier’s bill of lading, except as provided herein.” And further: “ The rates published herein apply in cents per hundred pounds on cotton in bales compressed or un [575] pressed, with carrier’s option to compress, and when shipped subject to the conditions of the carrier’s bill of lading.” Able counsel for the defendant contend that when the railroad published its schedules and reserved to itself the right to compress or not to compress, it did not thereby grant to shippers at large the right to have cotton compressed, and, not having granted to shippers at large the right to have cotton compressed, the contract made with the shipper in the instant case, to compress his cotton, was an unjust discrimination, and therefore void and unenforceable. While it is the settled law of this forum, as well as that of our sister States, that “ a railroad company which is an interstate common carrier cannot enter into a contract with a shipper which constitutes an unlawful or undue preference under the interstate-commerce act” (Florida R. Co. v. Cherokee Sawmill Co., 137 Ga. 815, 821, 74 S. E. 523; see also Draper v. Ga., Fla. & Ala. Ry. Co., 21 Ga. App. 707, 712, 95 S. E. 16, and cit.), we do not agree with counsel in the instant case that the contract under consideration was void because it gave the shipper an unlawful or undue preference. While the interstate-commerce act has been construed by the interstate commerce commission and various State courts (see Gamble-Robinson Com. Co. v. Chicago &c. Ry. Co., 168 Fed. 161, 166, 167, 94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Ann. Cas. 613) differently from the construction placed upon it by Judge Jackson (afterwards Mr. Justice Jackson of the United States Supreme Court) in the case of Interstate Commerce Commission v. Baltimore & Ohio R. Co. (C. C.), 43 Fed. 37, his is the true and correct interpretation of this act. Judge Jackson’s construction of the act, which has been several times' approved and adopted by the United States Supreme Court, is as follows: “ Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or advantage, or subject to undue preference or disadvantage persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at common law, free to make special contracts (as was done in the case under review) looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same [576] principles which are regarded as sound, and adopted in other trades and pursuits ” (Italics ours.) Applying this clear statement of the law to the instant case, we cannot say that the contract under consideration constituted an unjust or undue “ preference ” in favor of the present shipper and against others similarly situated. The published tariffs having permitted the carrier to exercise its option as to compressing cotton, and being silent as to whether it should exercise this option with or without a contract, there is no legal reason why either method could not have been pursued. Thus, it is obvious that the carrier, in exercising its option to compress, could as easily discriminate without a contract as with one. Nor can it be said that the contract under' consideration shows, as a matter of law, that the railroad company extended to the plaintiff a preferential privilege; and there was no evidence whatever adduced upon the trial to the effect that the carrier refused to make similar contracts with other shippers. We conclude, that, since the published tariffs expressly gave the carrier the option to compress, and since discrimination could have resulted with or without a contract to compress, and since the carrier in the instant case did contract to compress the plaintiff's cotton, it is bound by that contract, and liable for the breach thereof. It follows from what has been said that the court erred in directing a verdict for the defendant. Judgment reversed. Broyles, G. J., concurs. Bloodworth, J., dissents.