| Tex. App. | Nov 10, 1897
Appellee sued appellant to recover the value of a carload of horses, two saddles, bridles, and blankets, alleged to have been shipped by the Atchison, Topeka Santa Fe Railway Company, and the Gulf, Colorado Santa Fe Railway Company, from Guthrie, Oklahoma Territory, to Temple, Texas. Appellee claimed to have made a contract by which the freight was to be shipped the entire distance for $52. The suit was brought against the Gulf, Colorado Santa Fe Railway Company, which, in proper form, denied that it had made or was bound by any contract by which the freight was to be shipped from Guthrie to Temple for the sum of $52, and alleged that the regular tariff rate for such shipment was $75: that the shipment was interstate commerce, and that an agreement to charge less than the regular tariff rate of $75 would be in violation of the Act of Congress regulating interstate commerce, etc.
The testimony shows that appellant's line of railway extends from Temple, Texas, to Purcell, Indian Territory, where it connects with the Atchison, Topeka Santa Fe Railway, which extends to Guthrie, Oklahoma Territory, a distance of 150 miles from Purcell. The carload of horses was shipped from Guthrie by the Atchison, Topeka Santa Fe Railway to Purcell, Indian Territory, where they were delivered to the appellant, and transported by it to Temple, Texas. Upon arrival at the latter place, the plaintiff tendered to appellant the sum of $52, claimed by him to be the agreed freight charges, and demanded the possession of the horses. Appellant demanded $75 freight charges, and refused to deliver the horses unless that amount was paid. Appellee declined to pay more *258 than $52 freight, and left the horses in appellant's possession, and they were afterwards sold in substantial compliance with article 330 of the Revised Civil Statutes of this State.
Appellant offered to prove by the deposition of Edward A. Moseley, a resident of Washington City, and Secretary of the Interstate Commerce Commission, that the Atchison, Topeka Santa Fe Railway Company had filed schedules of rates, fares, and charges with the Interstate Commerce Commission under section 6 of the Act to Regulate Commerce; and that it appeared therefrom that its rate per standard carload of horses from Guthrie, Oklahoma Territory, to Purcell, Indian Territory, was $25, and that the Gulf, Colorado Santa Fe Railway Company had filed a similar schedule, showing that its freight rate on horses per standard car from Purcell, Indian Territory, to Temple, Texas, was $50, and that these schedules were filed anterior to the shipment involved in this case.
The plaintiff's counsel objects to this testimony on the ground that the witness did not speak from his own knowledge or observation, but from the records of his office, which was a public office, and that the records of his office were the best and only evidence. The trial court sustained this objection, and this ruling is assigned as error by appellant.
Section 6 of the Act of Congress regulating interstate commerce reads in part as follows: "That every common carrier subject to the provisions of this act shall print and keep open to the public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. The schedules printed as aforesaid by any such common carrier shall plainly state the places upon its railroad between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state, separately, the terminal charges, and any rules or regulations which in anywise change, affect, or determine any part of the aggregate of such aforesaid rates and fares and charges. Such schedules shall be plainly printed in large type, and copies for the use of the public shall be posted in two public and conspicuous places, in every depot, station, or office of such carrier, where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected. * * * And when any such common carrier shall have established and published its rates, fares, and charges in compliance with the provisions of this section, it shall be 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 services in connection therewith than is specified in such published schedule of rates, fares, and charges as may at the time be in force. Every common carrier subject to the provisions of this act shall file with the commission hereinafter provided for copies of its schedules of rates, fares, and charges which have been established and published in compliance with the requirements of this section, and shall promptly notify said commission of all changes made in the same." *259
Further provision is made in said section, applying to joint tariffs agreed upon between connecting carriers; but, it being shown that no joint tariffs had been agreed upon between the carriers concerned in this shipment, it is unnecessary to quote that part of the law. That above quoted, in our opinion, has application to this case.
The transportation by the Atchison, Topeka Santa Fe Railway Company from Guthrie, Oklahoma Territory, to Purcell, Indian Territory, was interstate commerce; as also was the transportation by appellant from Purcell, Indian Territory, to Temple, Texas. Therefore, if these carriers had separately established tariff rates and published the same in the manner prescribed by the statute referred to, then a contract by either or both to carry the freight for either less or greater compensation than the established rate was unlawful and void; and it was the right and duty of such carriers to demand and collect the established rate of freight. This much is said, because it is urged in this court that the Act of Congress referred to has no application in this case, because there was no joint tariff rate agreed upon and established by the two carriers.
Concerning the particular objection offered to the testimony in the court below, it is sufficient to say that the records of the Interstate Commerce Commission could not be reached by the process of that court, and we have been cited to no statutory provision, and have found none ourselves, authorizing certified copies from such records to be used in evidence. We think the court erred in excluding the testimony under consideration.
If upon another trial the testimony does not bring the case within the operation of the Interstate Commerce Law, and the plaintiff shows that he made a contract with the initial carrier for a through rate of $52, and proves that he tendered to appellant the $52, he will be entitled to recover, because the sum tendered was $2 in excess of appellant's established rate, and conceding appellant's contention that it was not bound by the contract made with the Atchison, Topeka Santa Fe Railway Company, the latter carrier would be bound thereby, and appellant would not be required, in a settlement with it, to pay over more than $2.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. *260