148 Ky. 718 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
Appellee, Ohio Valley Tie Company, brought this action against appellant, Louisville & Nashville Rail.road Company, to recover tbe difference between tbe •intra-state rate and tbe inter-state rate on certain railroad ties which it bad shipped- over the railroad from (pertain points in Kentucky to 'Louisville, Kentucky. The ámount involved is $8,189.91. From a judgment in favor
Appellee is engaged in the business of buying and selling railroad ties. Prior to the shipment of the ties involved in this' litigation, it had entered into written contracts with the Pennsylvania Eailroad Company, and with the Cleveland, Cincinnati, Chicago & St. Louis Eailway Company (known as the “Big Four”), whereby it sold to them about 500,000 ties at a fixed price, f. o. b. cars at Louisville, Kentucky. The cars were billed from the Ohio Valley Tie Company to the Ohio Valley Tie Company, care Pennsylvania Company, or to the Pennsylvania Company direct, or to the “Big Four” direct. There also appeared on the bills of lading either “care E. A. Bury” or “care "W. H. Scriven, Sup’t.” Under the contracts with the railroad companies, they were to pay the freight on the ties to Louisville, and in settling with appellee, the consignor, they were to deduct the amount oí the freight from the purchase price of the ties. Upon arrival of the cars at Louisville, they were delivered, to the consignees. Appellant demanded the inter-state rate on the shipments, and the consignee paid the freight according to that rate.
Appellee’s president testifies that his company had no intention one way or the other regarding the movement of the cars beyond Louisville. Its contracts with both of the railroad companies required that the ties be delivered f. o. b. cars Louisville, and it had nothing whatever to do with the movement of the cars after their delivery. His company had no understanding with the purchasers with reference to the disposition of the ties or cars after they reached Louisville. Upon reaching Louisville, the ties became the property of the purchasers-, and from that time were entirely under their control, and subject to any disposition they desired to make of them. This witness further testifies that appellee had a representative at the various places of shipment, but that the instructions regarding the billing were given by the inspector of the Pennslyvania Eailroad.
The evidence for appellant is to the effect that there
The evidence further shows that the ties, when received at Louisville by the purchasing carriers, were shipped by them as “company material” or “deadhead” to various points on their lines outside of the state of Kentucky.
For appellant it is insisted that because the purchasing carriers had the right to give shipping directions, and the way bills or contracts of shipment showed that the ties were shipped to the purchasing carriers in care of parties who, as a matter of fact, did not live in Louisville, and inquiry developed the fact that the ties, without being unloaded, went through in the same cars to points outside of the State, the shipments, notwithstanding the contracts of shipment, were actually destined to points outside of the state, and having actually started in the course of transportation to another state, were necessarily inter-state commerce. In other words, it is insisted that the contracts of shipment do not control, in view of the fact that the ties were destined to, alnd actually went to, points outside of the state.
The rule announced in Gulf C. & S. F. R. Co. v. State of Texas, 204 U. S., 403, is, we think, controlling' in this ease. There, Saylor and Burnett, of Goldthwaite, Texas, purchased of the Samuel Hardin Grain Oo., of Kansas City, Mo., two cars of corn, at a delivered price, f. o. b. cars, Goldthwaite, Texas. The Samuel Hardin Grain Oo., did not at that time have the grain, and purchased it of the Harroun Commission Co., at a delivered price
■ “It is undoubtedly true that the character of a shipment, whether local or inter-state, is not changed by a transfer of title during the transportation. But whether it be one or the other may depend on the contract of shipment. The rights - and obligations of carriers and shippers are reciprocal. The first contract of shipment in this case was from Hudson to Texarkana. During that transportation a contract was made at Kansas City for the sale of the corn, but that did not affect the character of the shipment from Hudson to Texarkana. It was an inter-state shipment after the contract of sale as well as before. In other words, the transportation which was contracted for and which was not changed by any act of the parties, was transportation of the corn from Hudson to Texarkana — that is, an inter-state shipment. The control over the goods in process of transportation, which may be repeatedly changed by sales, is one thing; the transportation is another thing, and follows the contract of shipment, until that is changed by the agreement of owner and carrier. Neither the Harroun nor
“In this respect there is no difference between an inter-state passenger and an inter-state transportation. If Hardin, for instance, had purchased at Hudson a ticket for inter-state carriage to Texarkana to go on to Goldthwaite, he would not he entitled, on his arrival at Texarkana, to a new ticket from Texarkana to Goldthwaite at the proportionate fraction of the rate prescribed by the Inter-state Commerce Commission for carriage from Hudson to Goldthwaite. The one contract of the railroad companies having been finished he must make a new contract for his carriage to Goldthwaite, and that would be subject to the law of the State within which that carriage was to he made.
“The question may he looked at from another point of’ view. Supposing a carload of goods was shipped from Goldthwaite to Texarkana under a hill of lading calling for only that transportation, and supposing that the laws of Texas required, subject to penalty, that such goods should be carried in a particular kind of car — can there be any doubt that the carrier would be subject to the penalty, although it should appear that the shippper intended, after the goods had reached Texarkana, to forward them to some other place outside the State? To state the question in other words — if’ the only contract of shipment was
“Again, it appeared that this corn remained five days in Texarkana. The Hardin Company was under no obligation to ship it further. It could, in any other way it saw fit, have provided corn for delivery to Saylor & Burnett, and unloaded and used that ear of corn in Texarkana. It must be remembered that the corn was not paid for by the Hardin Company until its receipt in Texarkana. It was paid for on receipt and delivery to the Hardin Company. Then, and not till then, did the Hardin Company have full title to and control of the corn, and that was after the first contract of transportation had been completed.
“It must further be remembered that no bill of lading was issued from Texarkana to Goldthwaite until after the arrival of the corn at Texarkana, the completion of the first contract for transportation, the acceptance and payment by the Hardin Company. In many cases it would work the grossest injustice to a carrier if it could not rely on the contract of shipment it has made, know whether it was bound to obey the State or Federal law, or, obeying the former, find itself mulcted in penalties for not obeying the law cf the other jurisdiction, simply because the shipper intended a' transportation beyond that specified in the contract. It must be remembered that there is no presumption that transportation when commenced is to be continued beyond the State limits, and the carrier ought to be able to depend upon the contract which it has made, and must conform to the liability imposed by that contract.”
Applying the rule above announced to the facts of this case, we find that appellee, the Ohio Valley Tie Company, had contracted to deliver the ties in question to the purchasing carriers f. o. b. cars at Louisville. Having obligated itself to deliver the ties at that point, it had a right to contract for their shipment to that point, 'and did in fact make such • contracts with appellant Pursuant to these contracts of shipment, appellant re7 'ceived the ties and actually delivered them to the purchasing carriers. Though the tie inspector of the purf
We see nothing in the case of Southern Pacific Terminal Co. v. Inter-state Commerce Commission, 219 U. S., 498, that conflicts with the rule herein announced.
As, under the contracts of purchase, the freight on the ties was to be paid by the purchasing carriers and credited on the purchase price, the purchasing carriers simply acted as appellee’s agents in paying the freight, and the payments were in no sense made on their behalf. The effect is the same as if appellee itself had made the payments. The payments having been made under the mistaken belief that the inter-state rate applied, when as a matter of fact the shipments were intrastate, and, therefore, subject to the rates fixed for local transportation, there can be no doubt of appellee’s right to recover.
Judgment affirmed.