98 Kan. 710 | Kan. | 1916
The opinion of the court was delivered by
W. P. McCullough sued the Missouri Pacific Railway Company for damages resulting from the misrouting of wheat shipped by him from points in Kansas to Monticello, Ind. He recovered a judgment for $652.86, and the defendant appeals. He had directed the grain to be sent by way of Chicago, and. from there to its destination by the Panhandle route, but it was not moved through Chicago, and was. delivered to the Panhandle company at Logansport, Ind. The tariff of the Panhandle route gave a privilege of milling in transit with respect to all grain destined to milling stations such as Monticello, which originated west of Chicago and was there delivered to that company. This privilege, if the shipping directions had been followed, would have inured to the benefit of the buyer at Monticello, by virtue of his contract with the shipper, and would have been worth to him five and a half cents to the hundred pounds. In settling with the plaintiff, the buyer made a deduction at that rate from what he would have been required to pay if the wheat had been routed as agreed upon, so that he could have had the benefit of the privilege referred to. The plaintiff submitted to the deduction and his action against the defendant is to recover on account of the loss he théreby suffered.
“(1) Grain to be milled or malted, may be shipped from a station on the P. C. C. & St. L. Ry., or the C. & M. V. R. R., or from stations on a direct connection of the P. C. C. & St. L. Ry. or the C. & M. V. R. R., as specified herein, to another station on the P. C. C. & St. L. Ry. or the C. & M. V. R. R. and eastward thereof, taking the same or less rate basis to eastern cities on the following conditions:
“ (2) Shippers must note on their shipping orders ‘For Milling or Malting Purposes’ and the billing agent must make a like notation on his way bills and bills of lading.
*714 “(.3) The Grain must be shipped in carloads, to a mill doing business at a station on the P. C. C. & St. L. Ry. or the C. & M. V. R. R. and must be way billed at tariff rate to milling station, and the tariff rate must also be shown on the bill of lading issued for the grain.
“(4) The agent at milling station-must take up the bill of lading on delivery of the grain, and on receiving from the mill within six months after the delivery of the grain thereto, car load shipments of the products of such grain, limited to:” [An enumeration of various products of grain is given, followed by directions as to manner of settlement.]
The paragraph numbered (12) reads as follows, the clause the effect of which is in dispute being italicized:
“(12) Grain in carloads, originating at points beyond Chicago, Ill., and delivered to this Company at Chicago or Chicago Junctions, named above, when destined to milling stations on the P. C. C. & St. L. Ry. or C. & M. V. R. R., to be milled or malted, will be subject to the conditions herein named; and the net rate will be the joint through rate on Grain Products from point of shipment on rate basing point to destination, plus one-half cent per 100 pounds (minimum charge $3.00 per car), provided the milled product is forwarded via the P. C. C. & St. L. Ry., or the C. & M. V. R. R., to Western Termini points located on the P. C. C. & St. L. Ry., Pennsylvania Company or Pennsylvania Railroad, or to points taking same rates (see list of points below), or to points east of Western Termini via Union Line, as shown in Union Line Bases for Freight Rates, I. C. C. 11, supplements thereto and reissues thereof, and in the absence of joint through rates the net rate will be published re-shipping rate on Grain Products from Chicago or Chicago Junctions, plus one-half cent per 100 pounds (minimum charge $3.00 per car). The Western Termini referred to above are: Allegheny, Pa.; Bellaire, Ohio; Buffalo, N. Y.; Erie, Oil City, Pittsburg, Titusville, Pa., and Wheeling, W. Va.”
The plaintiff contends that the twelfth paragraph is complete in itself; that the requirement concerning the notation on the shipping directions and bill of lading applies only to shipments originating on the Panhandle Route, or at stations on a direct connection therewith. This interpretation involves regarding the words “subject to the conditions herein named” in the italicized clause as relating to the conditions named in that particular paragraph. We feel constrained to hold that the expression quoted refers to the conditions named in the entire tariff of which this paragraph is a part. The punctuation and the connective “and” seem to suggest additional conditions rather than an enumeration of those referred to in the preceding clause. The requirements set out in the earlier paragraphs, especially those concerning the notation, and the char
It results that a reversal must be ordered, and the cause remanded with direction to render judgment for the defendant.