Dreyfuss v. Pennsylvania Railroad

Plaintiff was the consignee of two car loads of onions, shipped August 18, 1914, from Stockton, Cal., over a route specified in the bill of lading, concluding with carriage from Chicago to New York over the Erie Railroad. Owing to circumstances which are immaterial to the present controversy, the Erie Railroad was unable to deliver these two cars conveniently in New York City, and therefore transferred them at Waverly Transfer to the Pennsylvania Railroad, which brought them to this city. The Pennsylvania Railroad presented to the consignee a bill for transportation, which comprised a charge of 7 cents per 100 pounds, for service of the Pennsylvania Railroad, and $1.25 for the transcontinental carriage. Plaintiff at once called the attention of the Pennsylvania Railroad agent to the fact that the correct charge for the transcontinental carriage was only $1.05 per 100 pounds, and tendered the corresponding amount, namely, $1.12 per 100 pounds, which tender was refused. On the afternoon of the same day, September 3, 1914, the Pennsylvania Railroad having, on inquiry, ascertained that the lower rate was a lawful one, and that the Erie was willing to reduce the bill accordingly, delivered a “corrected bill” at' 3:45 p. m. at the office of the plaintiff. No response having been re-^ ceived, the Pennsylvania Railroad sold the onions at auction on the

[1] The first question presented for decision is the correctness of the first demanded rate. The Southern Pacific tariff, effective August 18, 1914, contains two “items,” 755 and 650-A, applicable to this shipment. The former shows a rate of $125 per 100 pounds to New York and $1 to Chicago; the latter, a rate of 75 cents per 100 pounds to Chicago. Incidentally it may be remarked that on a careful 'examination there might be a question whether item 755 applies to the present case, where, as I understand it, the shipment was straight' car loads of onions; but I shall assume that item 755 does apply. There was also in force on August 18, 1914, an Erie Railroad rate on onions from Chicago to New York, fifth class, of 30 cents per 100 pounds. There are thus apparently two rates applicable to the shipment in question, one a through rate of $1.25 per 100 pounds, and the other, by combination of intermediate rates, of $1.05 per 100 pounds. The Southern Pacific tariff also contains item 40-A, to which no reference is made in the briefs of either side, and which apparently was not called to the attention of the learned judge below. This item reads as follows:

“Item 40-A. If the aggregate of the intermediate rates, or the aggregate of the rates applying from points of origin to California terminals (named on pages 1 and 2), and the rates shown herein as applying from said California terminals to point of destination, makes less than the through rates named in this tariff or as supplemented, the combination rates so made will apply.”

Moreover, even apart from this provision of the tariff, the Interstate Commerce Commission has held repeatedly that, where a carrier hds published conflicting rates effective contemporaneously in the same tariff, the shipper is entitled to the lower of these rates. See Conference Ruling No. 239 of December 6, 1909, and references therein; also Laning-Harris Coal Co. v. M. P. R. Co., 13 Inter. Com. Com’n R. 154, 158, 159.

[2] It is therefore apparent that the only lawful rate in force to cover this shipment was the one of $1.05, and that, when the defendant .refused to deliver the consignment to plaintiff unless he should pay the higher rate, it was insisting on an'unlawful charge. It could not excuse itself on the theory that it had received these goods from the Erie Railroad, and was bound to pay or collect whatever the Erie charged. Defendant was as much bound to know the correct rate on the shipment which it took over as was the plaintiff. Boston & Maine R. R. Co. v. Hooker, 233 U. S. 97 , 34 Sup. Ct. 526 , 58 L. Ed. 868 ; Adams Exp. Co. v. Croninger, 226 U. S. 491 , 509, 33 Sup. Ct. 148 , 57 L. Ed. 314 , 44 L. R. A. (N. S.) 257 .

The learned judge below seems to have been of opinion that the defendant was justified in collecting whatever the Erie Railroad charged, but there is no authority for this view. The two cases cited in the opinion below, which have some bearing on this question, are not in point. Berry Coal & Coke Co. v. Chicago, P. & St. L. R. R. Co., 116 Mo. App. 214 , 92 S. W. 714 , concerned a shipment which was not a through bill of lading, and in Glover v. Cape G. & S. Ry. Co., 95 Mo. App. 369 , 69 S. W. 599 , the bill of lading did not specify a route, as

[3] The court below also regarded the question which rate was the lawful one as a matter to be determined by the Interstate Commerce Commission. But the issue presented here is not as to the reasonableness of a rate, of which, no doubt, the federal commission would have exclusive jurisdiction, but as to the correct application of a published tariff—a matter palpably cognizable by this court. P. R. R. Co. v. Puritan Coal Mining Co., 237 U. S. 121 , 35 Sup. Ct. 484 , 59 L. Ed. —.

[4] There remains, therefore, to be considered only the effect of the conduct of the defendant in sending a “corrected bilí” and the sale of these onions about a day and a half thereafter. In passing it may be remarked that the evidence is not perfectly clear as to the dates, and that plaintiff appellant has some ground for its claim that only a night intervened between the sending of the bill and the sale of the onions ; but I am accepting defendant’s version of the evidence. I do not think that a day and a half or two days was a reasonable time, under the circumstances, even assuming all the facts to be as defendant claims them to have been, for plaintiff to meet the corrected charge.

Apart from the fact that one of the defendant’s employés testified that, if a perishable commodity is not taken away, it is sold within a reasonable time, namely three days, there was no adequate proof that these onions were perishable, and certainly none that they required to be disposed of in the precipitate way shown in the case at bar.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

GUY, J., concurs

(concurring). The action is by the consignee of certain onions against the railroad company carrier for damages for refusal to deliver. The answer is a denial, and a counterclaim for the balance due for freight.

The following facts appear to be fairly established: Plaintiff purchased the onions in California and caused them to be shipped to his order over certain connecting lines, including the Erie Railroad, to New York. The Erie, not having a downtown track connection in New York City, turned them over to defendant. The goods arrived over the latter road August 31st, and plaintiff was duly notified. Plaintiff demanded the goods, and after some controversy as to proper freight charges tendered the freight charges based on a rate of $1.05, plus 7 cents for defendant’s special charges. Defendant refused to deliver, claiming the freight was $1.25, plus its 7 cents. The proper rate was the one tendered by plaintiff. Defendant ascertained this later, and so notified plaintiff, and that it would accept the lower rate. Thereafter defendant sold the goods as perishable, credited the amount realized on the freight charge as corrected, and counterclaims for the balance.

A cause of action being complete at the time of the demand and refusal, the subsequent offer could at most be received in mitigation of damages, and as such could be effective only if the plaintiff had the usual reasonable opportunity to pay the corrected charge and receive the goods before the sale, assuming the latter to have been lawful. If there was not such reasonable time between the receipt by plaintiff of the notice of the correction in the charges and a lawful sale of the goods, the evidence in mitigation of damages manifestly fails. It is fairly clear that the tender and demand were made on September 3d; that on the same day defendant was notified by the Erie Railroad of the mistake in the charge, and “the corrected notice” sent by defendant is dated September 3d, and was delivered on the same day at plaintiff’s place of business about 3:45 p. m. Defendant claims it also notified plaintiff of the correction by telephone on September 3d. The sale was made on a Saturday, September 5th. The notices of the corrected charge have stamped on them the statement that the free storage period expires within three days, “legal holidays and Sundays and day of arrival not included,” and defendant’s witness testified it was customary not to sell as perishable before three days. It is very clear that,- taking this as a basis for determining the reasonable time within which to pay and take the goods, such had not expired at the time of sale.

Defendant urges, and the court below held, that its refusal to deliver the goods at the time of the tender was not wrongful, because it in good faith believed $1.25 to be the correct rate, relying therefor on the representations made to it by the Erie Railroad at the time it received the goods; that being the amount assessed against them on the way bill as the charges of the preceding carriers. The bill of lading issued in California did not specify the rate to be charged, and it is very clear by its own admission that the Erie had no right to collect more than $1.05, and it could not give to defendant a lien greater than it had. If defendant paid, or advanced, to the Erie on its representations more than the proper amount, its remedy is against the Erie. The shipper is not responsible for the Erie’s representations, or- for mistakes as between the intermediate carriers, and is not bound to pay

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.