F. J. Lewis Mfg. Co. v. American Creosote Works, Inc.

SOMMERVILLE, J. Plaintiff sues for a balance of $3,399.23 on an open account, resulting from an oral contract in excess of $16,000, for 10 cars of creosote oil, to be forwarded to Louisville, Miss., in the year 1913. There is no dispute over the amount of the balance due, but defendant answered and reconvened, claiming that plaintiff had damaged defendant in the amount of $3,361.68, caused by shipping the 10 carloads of creosote over the Illinois Central Railroad at a cost of 50 cents per hundred pounds, when by proper attention and care the oil might have been shipped over the New Orleans & Northeastern Railroad at a cost of 8 cents per hundred pounds. It alleged that it paid these excessive railroad freight charges to the Illinois Central Railroad, and that plaintiff was responsible to it for the amount in excess of what it would have paid for the freight had it been sent over the New Orleans & Northeastern Railroad. And it asks for judgment accordingly. Defendant further pleaded prescription of one and three years. But the evidence shows that payments were made on the account to within one year of the time of filing the suit; and the pleas of prescription were properly overruled. There was judgment in favor of plaintiff for the amount claimed and against defendant, rejecting its reconventional demand. It would appear from the evidence that both plaintiff and defendant have offices, or representatives, in New Orleans; while plaintiff has a plant at Southport, and defendant’s plant is at Louisville, Miss. The parties had been doing business together for some time, while plaintiff had a tank at Ohalmette, just below New Orleans in St. Bernard parish, and that the creosote had been sent over the New Orleans & Northeastern Railroad to Louisville, Miss., at a rate of 8 cents per hundred pounds from Ohalmette. But it abandoned its tank at Ohalmette in 1913, and established a plant in Southport, which also adjoins New Orleans, in the parish of Jefferson; these three points are, according to the witnesses, in the “New Orleans district.” And there is some confusion in the evidence as to where the creosote oil was to be shipped from. It was the custom of the trade for the seller to do the shipping; and the shipping was attended to in this instance by the plaintiff, the selling company. In its petition, plaintiff says that the creosote was to be delivered f. o. b. Southport, while defendant says that it was to have been delivered f. o. b. Ohalmette; and the [197] same confusion appears to exist through the correspondence between the parties and the evidence introduced on the trial. We think it immaterial to come to a positive conclusion on this point for the reason that the parties were in New Orleans, and that New Orleans was the shipping point contemplated by them. The witnesses for the plaintiff testified that Southport was sometimes considered a local station on the Illinois Central Railroad, and at other times as a switch point. The first letter from plaintiff .to defendant would' indicate that the creosote oil was to have been delivered in tank cars in “our yard,” which would have meant Southport, while in another letter from plaintiff, it referred to the eight cent rate in effect from New Orleans io Louisville. It was clearly the duty of the plaintiff to have investigated and to have ascertained the freight rates between New Orleans or Southport and Louisville before it shipped the oil by any road. The agent admitted that he knew the freight rate from New Orleans or Chalmette to Louisville; and, to protect the plaintiff in this suit, he testified that he went to the commercial office of the Illinois Central Railroad and asked if the freight rates were the same between the two points. He is not clear in his statements as to what the question propounded was. He testified on this point: “I went to the Illinois Central Railroad commercial office at St. Charles and Common streets, and saw the rate clerk, and asked whether the rate via their line and the New Orleans, Mobile & Chicago would be the same as via the New Orleans & Northeastern and New Orleans, Mobile & Chicago, and he. said at that time that it would have the same rate. However, he did not look up any record.”- We do not think that this was a sufficient investigation on plaintiff’s part. It was not what a prudent man in making a large shipment would have done. The shipper knew that the freight tariff was published and posted, and it was his duty to have looked at the published rates. In not doing so he was neglectful and at fault, and plaintiff is responsible for the damage .wrought to defendant- through such failure -to perform the required duty. Section 6, Interstate Commerce Act (Fed. Stat. Annot. [2d. Ed.] vol. 4, p. 406, U. S. Comp. St. § 8569); Great Northern Ry. Co. v. O’Connor, 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703; A. T. & S. F. Ry. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901. We do not think that there was any fraud practiced or harm intended by the failure of plaintiff’s agent to properly act in the premises, but it was through his fault that the damage was suffered by defendant. It is argued that defendant has failed to make out its reconventional demand because it failed to prove the tariff rates between Southport, La., and Louisville, Miss. But, as before stated, Southport, New Orleans, and Chalmette were considered indiscriminately by the parties and the witnesses. 'The manager of the plaintiff company testified that the shipments from Chalmette were made from the “New Orleans district.” Again, he said: “I think the .shipments heretofore had been at the plant at New Orleans or Chalmette wherever it was.” It is very clear, as stated before, that New Orleans was considered as the shipping point for all of the oil, and the bills of lading in this case are all dated New Orleans, and not Southport. It was really the rate between New Orleans and Louisville for the two competing roads that was of interest to the parties; and plaintiff could not select the road which made the greater freight charge at the expense of the defendant, whom it was pretending to serve. Plaintiff must bear the loss for this failure and neglect on the part of its manager. Plaintiff has filed in this court a plea of prescription to the demand contained in the reconventional demand, claiming that the [199] “demand for .damages alleged to have been caused by the negligence of the agent of the P. J. Lewis Mfg. Go. is prescribed by the lapse of more than three years from the time the damage was suffered.” We do not think that the allegation to the effect that more than three years since the time of the damage is equivalent to a plea of prescription of three years. The court cannot supply the plea. Or, if it is so considered, plaintiff has not furnished us with any authority to sustain such a plea. The re-conventional demand claims damages for a quasi offense or act of negligence and imprudence on the part of plaintiff, and to which the plea of prescription of one year might be applicable. ' It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by ordering, that there be judgment in favor of plaintiff and against defendant in the sum of $3,399.23, with interest from judicial demand, with costs of suit, and that there be judgment in favor of defendant and against plaintiff for $3,361.68, with interest from August 13, 1913, and for costs. O’NIELL, J., dissents, being of the opinion the judgment should be affirmed. DAWKINS, J., takes no part.