A. G. Russell Co. v. Miller

Anderson, J., delivered the opinion of the court. The appellant, A. Gr. Russell Company, sued the appellees, C. J. Miller and others, in the circuit court of Warren County, for damages for injuring its business. Appellees interposed a demurrer to the declaration, which was sustained by the court, and, appellant declining to plead over, judgment final was rendered dismissing the suit, from which judgment this appeal is prosecuted. The declaration sets up substantially the following facts: That appellant is a corporation, engaged in the business of a cotton factor, its place of business being in the city of Vicksburg; that it has customers at points along the Yazoo and Sunflower rivers, to whom it makes advances in consideration of the shipment to it by such •customers.of cotton to be sold on commission, from the proceeds of which it reimburses itself for such advances ; that appellees own a line of steamboats running between points on the Yazoo and Sunflower rivers, and "the city of Vicksburg, being common carriers of freight and passengers; that it is the custom of appellees, and bas been for a long time, to accept consignments of cotton along the Yazoo and Sunflower rivers to cotton factors in the city of .Vicksburg, and collect the freight, levee taxes, and landing charges from such consignees on delivery- of the cotton; that the appellees still follow this custom as to all other cotton factors in the city of Vicksburg, except appellant; that at divers times appellees refused to accept from the customers of appellant, at points along said rivers, cotton consigned to ■appellant, and collect the freight, levee tax, and landing •charges on delivery, but made an exception of appellant, •and demanded of its customers the prepayment of such ■freight, levee tax, and landing charges; that this dis•crimination against appellant has driven customers away from it and injured its business. Both actual and punitive damages are sued for. [190] It is contended on behalf of appellant that the facts set out in its declaration constitute an unlawful discrimination against it by the appellees. Common, carriers have the right to demand of consignors their transportation charges in advance. Corinth Engine & Boiler Works v. Mississippi Central R. R. Co., 49 South. 261; 2 Hutchinson on Carriers (3d Ed.), § 567. And at common law they have the right to require the prepayment of such charges by all shippers, or some of them, as they may deem best; having the “same right as any other individual or corporation to exact payment for a service before it is rendered, or to extend credit." 2 Hutchinson on Carriers (3d Ed.), § 567; Little Bock & Memphis R. Co. v. St. L., 1. M. & S. R. Co., 63 Fed. 775, 11 C. C. A. 417, 26 L. R. A. 192; Gamble-Robinson Com. Co. v. Chicago & N. W. Ry. Co., 168 Fed. 161, 94 C. C. A. 217, 21 L. R. A. (N. S.) 982, 16 Am. & Eng. Ann. Cas. 613; Allen v. Cape Fear & T. V. Ry. Co., 100 N. C. 397, 6 S. E. 105. And the common-law rule is not abrogated by our statutes, providing for the supervision of common carriers, which are not as comprehensive as the interstate commerce law, which latter statute leaves such rule in full force, as held in the authorities cited last above, except the South Carolina case, in which the question was not involved nor considered. We quote the following from Judge Thayer, in Little Rock & Memphis R. Co. v. St. L., I. M. & S. R., supra, which is a very clear and able elucidation of the question: “Usually, no doubt, railroad companies find it to their interest, and most convenient, to- collect charges from the consignee; but we cannot doubt their right to demand a reasonable compensation in advance for a proposed service, if they see fit to demand it. This common-law right of requiring payment in advance of some customers, and of extending credit to others, has not been taken away by the interstate commerce law, unless it is taken away indirectly by the inhibition contained [191] in the third section of the act, which declares that an interstate carrier shall not ‘subject any particular person, company, corporation or locality ... to any undue or unreasonable . . . disadvantage in any respect whatever.’ This prohibition is very broad, it is true; but it is materially qualified and restricted by the words ‘undue or unreasonable.’ One person or corporation may be lawfully subjected to some disadvantage in comparison with others, provided it is not an undue or unreasonable disadvantage. In view of the fact that all persons and corporations are entitled at common law to determine for themselves, and on considerations that are satisfactory to themselves, for whom they will render services on credit, we are not prepared to hold that an interstate carrier subjects another carrier to an unreasonable or undue disadvantage because it exacts of that carrier the prepayment of freight on all property received from it at a given station, while it does not require charges to be paid in advance on freight received from other individuals and corporations at such station. So far as we are aware, no complaint had been made of abuses of this character at the time the interstate commerce law was enacted, and it may be inferred that the particular wrong complained of was not within the special contemplation of congress. This being so, the general words of the statute ought not to be given a scope which will deprive the defendant company of an undoubted common-law right, which all other individuals and corporations are still privileged to exercise, and ordinarily do exercise.” In Gamble-Robinson Com. Co. v. Chicago & N. Ry. Co., supra, Judge Sanborn, for the court, quotes the above language of Judge Thayer with approval. In the latter case the authorities will be found collected in the notes. The state has not .undertaken to supervise common carriers in all relations to their customers, but in such only as known evils had grown out of. In Allen v. [192] Cape Fear & Y. V. Ry. Co., supra, the court says: “And-we do not perceive any legal wrong done to one to whom ■credit may not be given, because it is given to others, it may be, because of their punctuality in paying bills whenever they are presented.” It is hardly conceivable that a carrier would arbitrarily require the prepayment ■of freight charges of some of its customers, and not of ■others, under exactly the same conditions. Until the legislature finds the existence of such an evil, and provides a remedy by law, the courts are without power to <do so. Affirmed,.