Hunter v. St. Louis & San Francisco Railroad

CAULFIELD, J. (after stating the facts). — I. The demurrer to the evidence was properly overruled. Plaintiff made a prima facie case by showing the rate of affreightment inserted in the bills of lading to be fourteen cents and that the defendant had exacted at destination,-and plaintiff had paid under protest, the amount sued for in excess of that rate. “Ordinarily the rate of affreightment inserted in a bill of lading is binding on the parties, and will be effectuated by the courts as agreed compensation for the services contemplated.” [Railroad v. Horne, 106 Tenn. 73, 59 S. W. 134; Wabash Ry. Co. v. Sloop, 200 Mo. 198, 98 S. W. 607.] It is true that the parties could not by agreement, mistake or otherwise, fix a rate on an interstate shipment, different than that, if any, established and in force under the Interstate Commerce Act. But certain steps must have been taken by the carrier in order to establish a rate under that act so as to affect the public, and the burden of showing that these steps have been taken rests upon the carrier. [Wabash Ry. Co. v. Sloop, and Railroad Co. v. Horne, supra.] These steps are filing the schedule with the Interstate Com — 631 — merce Commission and publication of it. “Tbe publication intended consists in promulgating and distributing the tariff in printed form preparatory to putting it into effect.” [United States v. Miller, 223 U. S. 599.] It contemplates tbe furnishing by tbe railroad company of copies to its freight offices. [Texas & Pac. R. Co. v. Cisco Oil Mill, 204 U. S. 449.] Tbe only evidence offered in that respect in tbe case at bar was tbe testimony offered by tbe defendant of tbe station agent at Lilbourn to tbe effect that, tbe schedule bad been furnished bis office before tbe transaction in question with plaintiff bad occurred. Tbe probative value of bis testimony depended upon bis credibility, which was for tbe trier of tbe fact to determine, and a demurrer to tbe evidence, based, as it must have been, on tbe theory that such testimony was conclusive, was properly refused. II. Tbe trial court cannot be held to have committed error or to have indicated that it entertained an erroneous view of tbe law by refusing the declarations of law offered by defendant, because those declarations were erroneous in this, that they declared in effect that tbe rate from Marston was established by filing a printed copy of tbe schedule showing it with tbe Interstate Commerce Commission and furnishing printed copies of such schedule to defendant’s, depot and freight agent at Lilbourn. Tbe Interstate Commerce Act, as it stood in 1908 (1909 Supplement, Fed. Stat. Ann., pp. 260, 261) declared, “That every common carrier subject to tbe provisions of this act shall file with tbe commission created by this act and print and keep' open to public inspection schedules showing all tbe rates, fares and charges for transportation between different points on its own route and between points on its own route and points on tbe route of any other carrier by railroad, by pipe line, or by water, when a through route and joint rate have been established. — 632 — . . . Siich schedule shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. ” . . . No change shall be made in the rates, fares, and charges or joint rates, fares, and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days’’ notice to the commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upón the schedules in force at the time and kept open to public inspection: Provided, That the commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions. ... No carrier, unless otherwise .provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor — 633 — shall any carrier refuse or remit in a¿y manner or by any device any portion of the rates, fares and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. . . .” In overruling a contention that a tariff is not “published” in the-sense in which the act uses that term and therefore does not go into effect unless printed copies are “kept posted in two public and conspicuous places in every depot,” etc., — a contention which found favor with the Missouri Supreme Court (see Wabash R. R Co. v. Sloop, 200 Mo. 198, 98 S. W. 607) — the Supreme Court of the United States said: “Publication and posting in the sense of the act are essentially distinct. This is the import of the provision that the requirements relating to ‘ publishing, posting and filing’ may be modified by the commission in special circumstances, for if publishing included posting, mention of the latter was unnecessary. And from all the provisions on the subject, it is- evident that the publichtion intended consists in promulgating and distributing the tariff in printed form preparatory to putting it into effect, while the posting is a continuing act enjoined upon the carrier, while the tariff remains operative, as a means of affording special facilities to the public for ascertaining the rates in force thereunder. In other words, publication is- a step in establishing rates, while posting is a duty arising out of the fact that they have been established; [U. S. v. Miller, 223 U. S. Repts. 599, 604.] This is a recent authoritative declaration by the highest tribunal in the land that “publication” is a step in establishing rates, and that publication means “ promulgating and distributing the tariff in printed form.” Where a law required a railroad company to “promulgate” a rule. it. was held that “promulgation — 634 — is to make ¡mown. It means that snch rule shall be brought to the attention of the servants affected thereby, or that it be given such publicity as that the servant, in the proper discharge of his duties, is bound to take notice of it.” [Wooden v. Western New York, etc., R. R. Co., 18 N. Y. Supp. 768.] We take it the United States Supreme Court must have meant by “promulgating and distributing” the furnishing of the tariff in printed form to each freight office for which a tariff rate is sought to be established. It so indicated in a previous case, where, in holding “posting” to be unnecessary it said: “The filing of the schedule'with the commission and the furnishing by the railroad company of copies to its freight offices incontrovertibly evidenced that the tariff of rates contained in the schedule had been established and put in force. ” [Texas & Pac. Ry. v. Cisco Oil Mill, supra.] And such is the common sense of the matter, for how could a tariff for a station, say Marston, be put into effect without making it known to the one in charge of that station or by making it known only to the agent of Lilbourn, another station of equal rank? A local station agent’s authority extends only to the control of the company’s business at his own station. [1 Elliott on Railroads (2 Ed.), sec. 303.] Of course we do not hold that in order to show that a rate had been established for a particular station, the printed schedule showing that rate need to be shown to have been sent to all other stations, the rates for which are included in such schedule, but we are of the opinion that to prove the establishing of a rate for a particular station it must be shown that the printed schedule had been furnished to that station or to the agent in charge thereof. It would have been error therefore to declare in effect that the rate for Marston was established by furnishing a printed copy of the schedule to “defendant’s depot and freight agent at Lilbourn.” — 635 — The declarations of law offered by the defendant were properly refused. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.