173 Wis. 237 | Wis. | 1921
Do. the facts alleged in the separate defense constitute a defense by way of estoppel precluding the railroad company from collecting the freight charges fixed by law from defendant on this interstate shipment? The trial court held that the negligence of plaintiff’s agent at Racine in presenting an expense bill to defendant which showed that the freight charges for this shipment had been paid does not constitute an estoppel precluding collection of its claim for freight charges from the defendant. Such charges had not in fact been paid, but defendant in reliance on such incorrect bill paid the Bradley Company the price of the carload of lumber without deducting these freight charges which the Bradley Company had agreed to pay. The interstate commerce act (U. S. Comp. Stat. 1918, § 8565) forbids common carriers from giving any preference or advantage to any person or subjecting any person to' any undue or unreasonable prejudice or disadvantage in any respect whatsoever in the conduct of its transportation business.
“The all-embracing prohibition against either directly or indirectly charging less than the published rates shows that the purpose of the statute was to make the prohibition applicable to every method of dealing by a carrier by which the forbidden result could be brought about.” New York, N. H. & H. R. Co. v. Interstate Comm. Comm. 200 U. S. 361, 26 Sup. Ct. 272..
In Texas & P. R. Co. v. Leatherwood, 250 U. S. 478, 39 Sup. Ct. 517, the court declared:
“That a carrier cannot be prevented by estoppel or otherwise from taking advantage- of the lawful rate properly filed under the interstate commerce act is well settled. A carrier has, for instance, been permitted to collect the legal rate, although it had quoted a lower rate and the shipper was ignorant of the fact that it was not the legal rate.”
And in A. J. Phillips Co. v. G. T. W. R. Co. 236 U. S. 662, 35 Sup. Ct. 444, it is stated:
“The prohibitions of the statute against unjust discrimina*240 tion relate not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defenses open to the carrier.”
It is manifest that the negligent presentation by plaintiff’s agent of an erroneous expense bill to defendant for the shipment in question could be made the means of avoiding the legal tariffs for its service as carrier if it should be held to be estopped from collecting the freight charges when demanded of defendant as consignee of the lumber.. The right to private contract between shipper and carrier, is wholly abrogated by the interstate commerce act, and the rates fixed by law are enforceable by the carrier by force of law. Unlawful acts of a carrier’s agents in connection with charging and collecting the legal rates for transportation cannot be made the foundation of an estoppel to prevent the carriers from enforcing the legal rate against those liable therefor. In New York, N. H. & H. R. Co. v. York & W. Co. 215 Mass. 36, 102 N. E. 366, the court says:
“The public policy thus declared supersedes the ordinary doctrine of estoppel, so far as that would interfere with the accomplishment of the dominant purpose of the act. It does not permit that inequality of rates to arise indirectly through the application of estoppel, which it was the aim of the act to suppress directly.”
See, also, Baltimore & O. S. W. R. Co. v. New Albany B. & B. Co. 48 Ind. App. 647, 94 N. E. 906, and Central of Georgia R. Co. v. Birmingham S. & B. Co. 9 Ala. App. 419, 64 South. 202.
The trial court properly sustained the demurrer to the separately alleged defense.
By the Court. — The order appealed from is affirmed.
