Chicago, Indianapolis & Louisville Railway Co. v. Peterson

168 Wis. 193 | Wis. | 1918

Eschweiler, J.

In interstate shipments of merchandise upon such bills of lading as were issued in this case the consignor is primarily liable for the freight charges, and the failure on the part of the common carrier to collect the freight charges from the consignee under the provisions of section 8 of the bill of lading, set forth in the statement of facts, even though thereby it loses its lien on the freight for such charges, is no defense. Great Northern R. Co. v. Hocking Valley F. C. Co. 166 Wis. 465, 166 N. W. 41.

The effect of the alleged custom or usage would be to substantially vary the express language of the bill of lading itself by making the person to whom the shipment was delivered, instead of the shipper, primarily liable, and because it would have such a contradictory effect proof of such alleged custom cannot properly be allowed. Mowatt v. Wilkinson, 110 Wis. 176, 85 N. W. 661; Francis H. Leggett & Co. v. West Salem C. Co. 155 Wis. 462, 471, 144 N. W. 969; State ex rel. News Pub. Co. v. Park, 166 Wis. 386, 390, 165 N. W. 289; Furness, Withy & Co. v. Randall, 124 Md. 101, 91 Atl. 797, 800; Portland F. M. Co. v. British & F. M. Ins. Co. 130 Fed. 860.

The relations between common carriers and shippers are no longer mere matters of contract, but are fixed by the laws and rules regulating such interstate commerce and partake of the nature of statutory obligations. Armour P. Co. v. U. S. 209 U. S. 56, 82, 28 Sup. Ct. 428; New York, N. H. & H. R. Co. v. York & Whitney Co. 215 Mass. 36, 40, 102 N. E. 366.

To give this alleged custom, therefore, the effect asked for by the defendants in this case would be to place them as shippers in a different and necessarily more favored position than other merchandise shippers in the same locality in whose favor no such custom existed. There can be no such preferences lawfully given or created by any agreements between carriers and shippers under the interstate commerce law. Atchison, T. & S. F. R. Co. v. F. H. Stannard & Co. 99 Kan. 720, 162 Pac. 1176; Wells Fargo & Co. v. Cuneo, 241 Fed. 727.

The ruling of the court below in sustaining the demurrer to such defense was correct.

By the Court. — Order affirmed.