150 S.W. 1184 | Tex. App. | 1912
The appellants, Bergin, Gurdon, and Fleming, were joint owners of 3,272 gallons of ribbon cane syrup which they desired to ship to points in Oklahoma for sale. In November, 1908, they applied to the agent of the appellee at Winnsboro, in Wood county, Tex., for a car in which to ship their goods. The car was furnished and the syrup loaded on December 4, 1908, at Scroggins, a small station near Winnsboro, and at which the railway company kept no agent. A bill of lading was issued naming Colgate, Okla., as the point of destination, and the freight charges were prepaid to that place. At the time the contract of shipment was made, the appellants had an agreement with the railway agent that in consideration of $5, then paid, they were to have the privilege of stopping the car containing their syrup at Atoka, Okla., an intermediate point 15 miles from Colgate. This stop-over privilege was desired and given in order to allow time and opportunity to unload and sell a part of their goods, and was to continue during the next succeeding Monday and Tuesday. The agent at Winnsboro was fully informed of the purposes and time for which the stop-over privilege was wanted, and indorsed on the bill of lading the words: "Stop at Atoka to part unload." Relying upon this agreement to stop the car at Atoka, appellants advertised that they would offer their syrup for sale at that place on the following Monday and Tuesday, and received assurances that they could have sold large quantities of their goods at 65 cents per gallon had the car been stopped as contracted. The car was not stopped in accordance with the agreement, but was carried through to Colgate, its ultimate destination, to which the freight charges had been paid. It arrived at Colgate on Friday preceding the Monday on which appellants had advertised their sale to take place in Atoka. Appellants knew on Saturday that the car had been carried through, and they demanded its return to Atoka upon the original bill of lading without tendering or offering to pay any additional freight charges. The regular freight rate from Colgate to Atoka for such goods in car load lots was $28 according to the published schedule. The railway agent at Colgate declined to return the car upon the original bill of lading without instructions from his superior officers, and referred the matter to them. He would, however, have returned the car had appellants paid the usual freight charges from Colgate to Atoka, and requested its return. On Tuesday evening following appellants were notified by the railway agent that the railway company had declined to return the car upon the original bill of lading, and without the payment of the usual freight charges. Appellants then proceeded to sell their goods at Colgate and other places at what is claimed by them to have been prices less than they could and would have received had they been permitted to stop the car at Atoka according to their agreement. From this testimony it appears that they sustained damages amounting in the aggregate to something over $700. To recover those damages upon the ground that the contract to stop over had been broken is the purpose of this suit. The case was submitted to the court without a jury, and judgment rendered in favor of the defendant in the suit. From that judgment the plaintiffs below have appealed.
While the appellee filed in the court below general and special exceptions to the appellants' petition, and a general denial, the defense which seems to have been mainly relied on, and which presents the only question discussed in the briefs on this appeal, is the illegality of the contract granting the stop-over privilege at Atoka. It is alleged in the answer and sustained by the evidence that the appellee had prior to the date of this contract of shipment prepared and filed with the Interstate Commerce Commission rate sheets and schedules fixing and showing the joint and through freight rates and charges for the shipment of different classes of freight and commodities from points in Texas, including Scroggins and Winnsboro, to points in Oklahoma, including Atoka and Colgate; that such tariff sheets had been filed with the Interstate Commerce Commission, and posted in the manner required by the Interstate Commerce Act then in force. The tariff sheets above referred to included one classification covering syrups and molasses, but these did not provide for any stop-over privilege in the shipment of such commodities between points in Texas and Oklahoma. No provision whatever was made for the grant of any such privilege in the transportation of that class of freight including syrups and molasses. In the tariff sheets applicable to other commodities belonging to a different class provision was made for a stop-over privilege, for which $5 per car was the usual charge. The record does not disclose what character of freight entered into and formed the class with reference to which this privilege was allowed. It only appears that it did not include syrups and molasses.
The judgment rendered in the court below was a general one, the record containing no special conclusions of the court either of law or fact; but it is manifest from the facts as agreed to and presented in this court that the trial judge based his judgment entirely upon the conclusion that the contract for the stop-over privilege was illegal and void because it had not previously been incorporated in the railway tariff sheets and published in accordance with the requirements of the Interstate Commerce Act (Act Feb. 4, 1887, c.
The appellee assails the sufficiency of the only assignment of error appearing in the brief of the appellants. But we refrain from discussing that question, believing that the ends of justice will be best subserved by resolving all doubtful issues in such cases in favor of the party appealing. In their argument the appellants contend that a privilege granted by a common carrier permitting a shipper to stop a cargo of freight at an intermediate point while in transit for the purpose of unloading a part of it is no part of the service of transportation, and is not one which is required by the Interstate Commerce Act to be published in the railway tariff sheets as a condition upon which it may be accorded to shippers. We make the following excerpts from section 6 of the Interstate Commerce Act as it stood after the amendment of 1906 (Act June 29, 1906, c. 3591,
It is but repeating what has often heretofore been declared by the higher courts to say that one of the purposes of the Interstate Commerce Act in its original enactment was to prevent unjust discrimination by carriers in the transportation of freight, and to compel, in so far as it could be done by law, the extension of uniform rates to all shippers. When we trace the different amendments which have been added from time to time as new and unprovided for instances of discrimination arose, we cannot fail to be impressed with the vigilance and zeal with which that purpose has been pursued by Congress. As a means of accomplishing that end, common carriers are now required, as a condition upon which they are permitted to engage in interstate commerce, to publish and file with the Interstate Commerce Commission tariff sheets showing their rates of freight and charges *1187
for the services which they engage to render in the transportation of goods. If, in addition to their common law obligations and statutory duties, they undertake to perform any special service, or allow any particular privilege, in connection with and as a part of their transportation services, these also must be published and filed with the Commission. C. C. Folmer v. Railway Co., 15 Interst.Com. Com'n R. 33; Kile et al. v. Railway Co., 15 Interst.Com. Com'n R. 235; C. A. Ry. Co. v. Kirby,
*1188The judgment is therefore affirmed.