Cicardi Bros. Fruit & Produce Co. v. Pennsylvania Co.

213 S.W. 531, 201 Mo. App. 609, 1919 Mo. App. LEXIS 83

• Court: Missouri Court of Appeals
• Decided: May 6, 1919
• Status: Published

Opinion

BECKER, J.

— This is a suit by plaintiff to recover damages from defendant because of the failure of the defendant to carry out an alleged agreement on its part to immediately reconsign by wire three cars of potatoes from Pittsburgh, Pennsylvania to Chicago, Illinois.

Plaintiff had three car loads of potatoes in transit from Cape Charles, Virginia to St. Louis. On July 11, 1914, and for a day or two prior thereto they were being held in the produce yards at Pittsburgh, Pennsylvania, awaiting diverting or reconsigning orders. According to plaintiff’s testimony, at about ten thirty o’clock on Saturday morning of the said 11th day of July, plaintiff phoned the Vandalia Railroad office in St. Louis, agent for the defendant carrier, that plaintiff desired to have three cars of potatoes diverted over its lines from Pittsburgh to Chicago, and the Vandalia representative who took the message over the phone stated that he would immediately wire the diverting of the cars as requested, and plaintiff thereupon immediately caused a messenger to go to the bank and take up the drafts to which the bills-of-lading for these cars were attached and caused them to be taken to the office of the Vandalia Railroad Company, and the receipt taken for the same, signed by the Vandalia Railroad Company. Plaintiff’s testimony is to the effect that the bills-of-lading were delivered at or about a quarter of eleven in the forenoon; that after such delivery of the bills-of-lading, the cashier of the plaintiff called up the Vandalia over the telephone and had a talk with a Mr. Bula, Commercial Agent in the Van-dalia office, during the course of which Bula stated that he would see to it that the order for diverting the cars was sent immediately by wire. It further appears that the cars were in the produce yards at Pittsburgh, a fact Avhich was known to the plaintiff, plaintiff having received a wire from Mr. Rush, the official in charge of said yards where said cars were held, asking what disposition the plaintiff desired to make of the cars. This information, that the cars were in the produce yards at Pittsburgh, was not disclosed to the Vandalia at the time the order for diverting the cars was made.

On the part of the defendant testimony was adduced tending to show that the plaintiff communicated with the Vandalia in St. Louis by telephone at eleven thirty on Saturday morning, July 11, 1914; that plaintiff .stated that it had three cars to be reconsigned from Pittsburgh and that it would send a boy down directly with the bills-of-lading and a reconsigning order; that the cars were to be reeonsigned to Baldwin & Company at Chicago; that the Vandalia representative replied it was rather late and that their Pittsburgh office was closed and they would not be able to wire the order diverting the cars, and that they would send the diverting order by mail that afternoon. According to testimony adduced by defendant, it did not know whether the cars were in Pittsburgh at that time, nor did the plaintiff inform it as to their location; also that the Pittsburgh office of the defendant closes at twelve o’clock noon on Saturday, which is equivalent to eleven o’clock in St. Louis.

Mr. Bula, Freight Solicitor for the Vandalia, who had one of the conversations over the telephone with the representative of the plaintiff relative to the reconsigning of these cars, testified for the defendant. In his testimony we find the following questions and answers: “Q. In the matter of reconsigning orders, diversion orders, they are covered by public tariffs? A. Tes. Q. On file in the Interstate Commerce Commission? A. Yes, sir. Q. All those terms under which the reconsignment and diversions are carried out, are all covered by tariffs? A. Yes, sir. Q. Did Miss Hansen (cashier for plaintiff company) tender you any changes for telegraph or phone service? A. No. Q. In connection with these reconsigning orders? A. No. Q. Do you make any reeonsignments without possession of the original bills-of-lading? A. No. Q. You cannot act on phone call? A. No. Q. When did you send this letter to Pittsburgh? A. Twelve o’clock Saturday. Q. To whom did you address it? A. Mitchell, .freight solicitor, Pittsburgh, Vandalia Railroad. Q. Is that the usual course of business of your company? A. Yes, sir. ... Q. If you had sent a telegram to Mitchell Saturday afternoon, July 11th, would it have done any good? A. No. Q. Was there anybody there to receive it? A. No, those offices are closed just like the general office. Q. Any man in charge of the office that afternoon? A. No. Q. And you say a letter would have gotten there in the same length of time? A. Just exactly.” Bula also testified that the produce yards in which these particular cars were, were in charge of an official named Rush, an employee of the Pennsylvania Railroad Company, a separate and distinct company from the defendant; that Rush had a separate office apart from that of the officials of the Pennsylvania Company, defendant here, located up town in the produce yards in Pittsburgh; that had the plaintiff given defendant the information that the ears were being held in the produce yards in Pittsburgh they could have wired the order to divert the cars to Mr. Rush on Saturday afternoon.

Samuel G-. Hopkins, an employee in the commercial office of the Vandalia office in St. Louis, testified as a witness for the defendant and corroborated the testimony of the witness Bula to the effect that plaintiff: asked for the diverting of the cars on the morning in question at an hour too late for them to reach the defendant’s office in Pittsburgh by wire; that diverting-orders were sent by mail during the day Saturday, which would reach their office in Pittsburgh for delivery .as early as if a telegram had been sent when plaintiff sent in the bills-of-lading with the order to divert the cars; that they did not know of the particular location of the ears in Pittsburgh, but had they known of the same they could have reached the produce yards by wire oyer the Western Union Telegraph lines. The following questions and answers appéar in his testimony: “Q. What is the course of business between your office and Pittsburgh on Saturday afternoon with reference to reconsignment or diversion orders? A. They are handled by mail. Q. Invariably? S. Yes, unless we know the actual location of the cars. Q. Then what is your custom? A. We usa the Western Union Telegraph. Q. Could you have the Western Union Telegraph— could you take that course with Mr. Mitchell’s office on Saturday afternoon? A. No. Q. With what office would you take it up? A. The local office that had control of the yard in which the car was located. ’ ’

The record discloses that plaintiff had, on Friday afternoon, July 10th, resold the three cars of potatoes to Baldwin & Company in Chicago, giving Baldwin & Company to understand that the potatoes would be diverted so as td arrive in Chicago Monday morning July 13, 1914; that had the cars left Pittsburgh Saturday evening they would have arrived in Chicago on the Monday following; that by reason of the fact that the agent of defendant in St. Louis did not wire the order but sent same by mail to the defendant company’s agent, Mitchell, commercial freight agent in Pittsburgh, the cars were not reshipped out of Pittsburgh until Tuesday, July 14th or Wednesday, July 15th, and did not arrive in Chicago until Thursday, July 16th, or Friday, July 17th; that the price of potatoes in Chicago on July 16th and 17th was much lower than the price thereof on July 13th; that Baldwin & Company refused to accept the potatoes when they arrived in Chicago at and for the price at which they had been sold by the plaintiff to them on the Friday preceding, with the result that plaintiff ordered Baldwin & Company to sell the potatoes for their account, which they did, and that the price obtained was much less than the price at which they had been sold to Baldwin & Company.

Defendant offered an instruction in the nature of a, demurrer at the close of plaintiff’s case and again at the close of the entire case, each of which was overruled. The case was submitted to the jury, which returned a verdict for plaintiff and against the defendant in the :sum of $1126.53. After unavailing motions for new trial and in arrest of judgment, the defendant appeals.

Por a better understanding of the opinion in this case we set forth the following as a substance, of plaintiff’s cause of action as contained in plaintiff’s amended petition:

“Plaintiff states that on or about July 11, 1914, the defendant had in its possession at Pittsburgh, Pa., holding for diverting or reconsigning orders, three carloads of potatoes, its- property, consisting of 560 barrels, 180 barrels of which were loaded in car No. 10446, 190 barrels in car No. 2194 and 190 barrels in car No. 2290.

Plaintiff states that on the morning of said July II, 1914, it gave to the Vandalia Railroad Company at St. Louis, Missouri, acting as the agent for the defendant, diverting or reconsigning orders for said three cars of potatoes, by the terms of which said diverting ■r reconsigning orders said cars were to be diverted or reconsigned out of Pittsburgh, Pa., to Chicago, Ill., there to be delivered to F. E. Baldwin & Company.

“Plaintiff states that the said Vandalia Railroad Company, acting as agent of defendant as aforesaid, received and accepted said diverting or reconsigning orders, so given as aforesaid, and. agreed with plaintiff for the defendant to immediately divert or reconsign by wire said cars of potatoes to Chicago, Ill., there to be delivered to F. E. Baldwin & Company.

“Plaintiff states that had the defendant immediately diverted or reconsigned said cars to Chicago, III., on said July 11, 1914, the same would have arrived in Chicago, Ill., on Monday, July 13, 1914, but plaintiff states that the defendant did not immediately reconsign or divert by wire or otherwise or canse to be so diverted said cars to Chicago, Ill.”

In talcing np the questions involved in this appeal we need not pass upon the question as to whether or not plaintiff’s petition is sufficient to base upon it a count that the carrier was liable for negligence in the alleged failure of the defendant to divert or reconsign the cars in question with reasonable dispatch or within reasonable time.

As we read the petition there can be no question but that it alleges a definite breach of an alleged oral special agreement set out therein, namely, an oral agreement on the part of defendant to immediately divert or reconsign, by wire on July 11, 1914, three cars of merchandise at Pittsburgh. The testimony adduced in the case conclusively shows that plaintiff tried the cause upon the theory that such was the only issue raised by the pleadings, and plaintiff’s principal instruction^ which covers the entire case and directs a verdict, which in fact was its only instruction outside of one on the measure of damages, clearly and unequivocally rests the case upon the sole question as to whether or not the plaintiff had proven the oral special agreement pleaded by it in its petition, and whether or not there had been a breach thereof on the part of the defendant.

In this state of the record the determinative question is whether or not the special contract alleged by plaintiff “to immediately divert or reconsign by wire on July 11, 1914”-is void under the Federal Interstate Commerce Law.

By the 6th section of the original Act of 1887 (24 Statutes at Large, p. 379, Chap. 104, U. S. Compiled Statutes Supp. 1911, p. 1284) it is required that carriers subject to the Act “shall print and keep for "public inspection schedules showing the rates, charges *and classifications, and any rules and regulations which in any wise change or affect or determine any part or the aggregate of such aforesaid rates and fares and charges.” . . . “And when any such common carrier shall have established and published its rates, lares and changes, in compliance with the provisions of this section, it shall he unlawful for such common carrier to charge, demand, collect or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any service in connection therewith, than is specified in such published schedule of rates, fares and charges as may at the time he in force.” (Italics ours.)

By- the Act of February 19, 1903, known as the Elkins Act, amending the Act of 1887 (32 Statutes at Large, p. 847, Chap. 708, U. S. Compiled Statutes Supp. 1911, p. 1309) it is made “unlawful for any person, persons or corporations to offer, grant or give, or to solicit, accept or receive, any rebate, concession or discrimination in respect of the transportation of any property in interstate or foreign commerce by any common carrier subject to said Act to regulate commerce and the Acts amendatory thereto, whereby any such property shall, by any device whatever, be transported at a less rate than that named in the 'tariff published and filed by such carrier, as is required by said Act to regulate commerce and the Acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced.” (Italics ours.)

Under the Act a published tariff, so long as it is in force, has the effect of a statute and is binding alike on carrier and shipper. [Pennsylvania Ry. Co. v. International Coal Co., 230 U. S. 184, 1. c. 197.] And with respect to the services governed by the Act, the rule that both carrier and shipper are bound by and cannot alter the terms of service as fixed by the filed regulations, applies not only to rates, but also to other stipulations relating to service and facilities within the purview of the Act. [Southern Ry. Co. v. Prescott, L 240 U. S. 632.] And the effect to be given the provisions of an interstate shipping contract is governed by the decisions of the Federal courts and state courts are bound to follow their rules. [Clegg v. St. Louis, etc., Ry. Co., 203 Fed. 971, 122 C. C. A. 273; Hamilton v. Chicago, etc., Ry. Co., 177 Mo. App. 154, 164 S. W. 248; Bailey v. Mo. Pac. Ry. Co., 184 Mo. App. 457, 171 S. W. 44; Dunlap v. Chicago, etc., Ry. Co., 187 Mo. App. 201, 172 S. W. 1178.]

Under our Federal laws the shipper is hound to take notice of the filed tariff rates and so long as they remain operative they are conclusive as to the rights of the parties in the absence of facts or circumstances showing an attempt at rebating or false billing. [Atchison, Topeka & Santa Fe Ry. Co. v. Robinson, 233 U. S. 173; Kansas City & Southern Ry. Co. v. Carl, 227 U. S. 657.] And no oral agreement can be given a prevailing effect which will be contrary to the filed schedule, in that to do so would open the door to special contracts and defeat the primary purposes of the Interstate Commerce Act, which requires equal terms to all shippers and the charging to all of but one rate and that the rate filed, as required by the Act. [Atchison, Topeka & Santa Fe Ry. Co. v. Robinson, supra; Kansas. City & Southern Ry. Co. v. Carl, supra.]

We have found no authority and have been cited none, which holds that there is a common law duty on the part of the carrier to reconsign or divert cars in transit upon request of the shipper immediately by wire, and as we read the record before us it is barren of any testimony directly bearing upon the question as to what the prevailing custom, if any, may be on the part of carriers when directed to reconsign or divert cars in transit; whether it is customary for the carrier to carry out such request by mail or by wire. The provisions covering diversions as set out in the tariff on file with the Interstate Commerce Commission, and in effect during all the period that the transportation of the cars in question is involved, filed by the New York, Pennsylvania and Norfolk Railroad Company, with initial carrier, a copy of which tariff, duly certified to by the Seerfitary of the Interstate Commerce Commission, was introduced in evidence on the part of the defendant below, and provides: “(1) Carload tariff which has been changed from the original to a new destination prior to arrival at the original destination will be known as a diversion: Upon receipt of written request prior to arrival at original destination the carrier will make reasonable effort to accomplish the change desired but will not be responsible in the event of failure on the part of any of its employees to accomplish such diversion.” Therefore in the absence of testimony as to the customary manner of handling, reconsigning or diverting cars on the part of the carrier, and in light of the provisions regarding diversions, filed with the Interstate Commerce Commission by the initial carrier, which we hold governs the diversion or reconsigning of the cars in this case, we come to the conclusion that plaintiff failed to make out a case sufficient to go to the jury unless it be that we can hold the plaintiff has made out a case under its theory of a special contract, which was the theory upon which the learned trial judge submitted the case to the jury.

As we have stated above it is not within the power of the carrier to give, at its option, special privileges to a shipper; any services contemplated to be done by the carrier must be equally applicable to all shippers under like circumstances and such services must be stated in its filed tariff under the provisions of the Act to regulate commerce. We concede it is within the power of the carrier, for a consideration, to contract for such special services as it is here claimed were agreed upon between the plaintiff and defendant, provided the carrier makes and publishes a rate for such services open to all. So far as can be determined from this record this was not done but rather, “the shipper . . . was contracting for an advantage which was not extended to all others, both in the undertaking to carry so as to give him a particularly expedited service and a remedy for a delay not due to negligence. . . . An advantage accorded by special agreement which affects the value of the service to the shipper and its cost to the carrier should be published in the tariffs, and for a breach of such a contract, relief will be denied because its allowance without such publication is a violation of the act. It is also illegal because it is an undue advantage, in that it is not one open to all others in the same situation.” [Chicago & Alton Ry. Co. v. Kirby, 225 U. S. 155, l. c. 165.]

The alleged breach of the special contract sought to be relied upon by plaintiff in the instant case, when stripped of extrinsic matters, resolves itself to simply this, that defendant did not divert the cars out of Pittsburgh by wire so as to have them go by a particular train. In other words, plaintiff seeks to enforce a special agreement by which, according to plaintiff’s interpretation thereof, the carrier guaranteed to cause plaintiff’s cars to be immediately diverted by wire so that they would leave Pittsburgh by the evening tram and arrive in Chicago Monday morning. This the defendant could not do; it was tantamount to an agreement (if made) on the part of the carrier, “to guarantee a particular connection and transportation by a particular train so as to give an advantage by preference not open to all and not provided for in the published tariffs.” [Chicago & Alton Ry Co. v. Kirby, supra.]

Whether plaintiff could have recovered upon the carrier’s contract to divert or reconsign with reasonable dispatch or within reasonable time, is a matter that is not presented to us by this record. As we have stated above plaintiff treated its petition as based upon the breach of a special contract alone, as is evidenced by all the testimony and the instructions in the case.

It follows from what we have stated above that the learned trial judge should have sustained defendant’s demurrer. The judgment is accordingly reversed and the cause remanded for such further proceedings as are not inconsistent with this opinion.

Reynolds, P. J., and Allen, J., concur.