115 N.Y.S. 838 | N.Y. Sup. Ct. | 1909
The plaintiff’s freight agent agreed with the defendant to carry milk in cans and bottles on the plaintiff’s railroad from Carmel to Melrose Junction, both in the State of Eew York, at a rate less than the tariff rate fixed by the schedule filed by the plaintiff with the Public Service Commission and posted as required by section 28 of the Public Service Act. The tariff was paid, and this action was brought to recover the difference between the amount of freight paid by the defendant under the said arrangement with the plaintiff’s agent and the tariff rate shown by the schedule filed with the Public Service Commission and posted as aforesaid.
At the trial a verdict for the defendant was directed,- and a motion was thereupon made to set aside the verdict and for a new trial, upon which decision was reserved; and the question on this motion is, whether the contract made by the plaintiff’s agent with the defendant, for a rate less than the legal charge as fixed by the schedule filed with the Public Service Commission, is a valid contract as far as the parties thereto are concerned, and whether the plaintiff is bound thereby. At the trial I was of the opinion that the plaintiff was estopped from making any claim in excess of the rate fixed and agreed upon by its agent with the defendant, but the authorities bearing upon the question seem to hold the other way. My attention has not been called to any decision in this State, nor have I been able to find one on this question, as far as it relates to State commerce or the Public Service Act of this State; but there have been decisions by the Federal courts as to the validity and effect of such a contract under the Interstate Commerce Act and, by such decisions, it has been uniformly held that a contract between a common carrier and a shipper, for a freight rate less than the tariff rate as fixed by the filed schedule, is not only in violation of the Interstate Commerce Act and illegal, but that •neither party thereto can avail himself of its terms, and that neither party to such a contract is protected thereby. Armour Packing Co. v. United States, decided by the United States Supreme Court on March 16, 1908, reported in Ad
In Texas & Pacific R. Co., v. Mugg, 202 U. S. 244, the railroad company made and quoted to Mugg a rate of one dollar and twenty-five cents per ton on two cars of coal, and one dollar and fifty cents per ton on one car of coal in January and February, 1903, respectively, from Coal Hill, Ark., to Weatherford, Texas, on which rates, so made and quoted, plaintiff relied in contracting said coal shipped and sold at prices based on said rates. Whereas, defendant assessed and collected of plaintiff freight at the rate of two dollars and seventy-five cents per ton on said two cars, and two dollars and eighty-five cents per ton on said one car, which said freight rate plaintiff was forced to pay, and did pay under protest, in order to obtain said coal and deliver the same in compliance with sales previously made, and sued to recover back the excess.
The rates of one dollar and twenty-five cents and one dollar and fifty cents per ton were shown in the bill of lading under which the property was transported, while the rates collected were the rates shown in the carrier’s tariffs on file with the Interstate Commerce Commission, when the property moved. The carrier contended that, if it ever quoted any such rate as claimed by plaintiff, such quotation was a violation of the Interstate Commerce Act, and that the contract relied upon by the plaintiff, if made, was in violation of law, and void.
Mr. Justice White, delivering the opinion of the court, says: “ This case is within the principle of and is ruled by the decision in Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98. Upon the authority of that case the supreme court of Alabama denied the liability of a railroad company in a case of similar character to that under review. (Southern Eailroad Co. v. Harrison, 119 Ala. 539.) The opinion of Chief Justice Bricked so aptly reviewed and declared the effect of the decision in the Hefley case, that we adopt the same in disposing of the present controversy. The Alabama Court said: ‘In Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, the plaintiff sued to recover damages for the refusal by the
The two cases above cited were under the Interstate Com
“ Bo carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or .property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the pro
Section 28 of the Public Service Law of this State reads as follows: “ Every common carrier shall file with the commission having jurisdiction, and shall print and keep open to public inspection, schedules showing the rates, fares and charges for the transportation of passengers, and property within the state between each point upon its route and all other points thereon; and between each point on its route and all points upon every route leased, operated or controlled by it; and between each point on its route or upon any route leased, operated or controlled by it and all points upon the route of any other common carrier, whenever a through route and joint rate shall have been established, or ordered between any two such points. If no joint rate over a through route has been established, the several carriers in such through route shall file, print and keep open to public inspection, as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules, printed, as aforesaid, shall plainly state the places between which property and passengers will be carried, and shall also contain the classification of passengers, freight or property in force, and shall also state separately all terminal charges, storage charges, icing charges and all other charges which the commission may require to be stated, all privileges or facilities granted or allowed, and any rules or regulations which may in anywise change, affect or determine any part, or the aggregate, of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee. Such schedules shall be plainly printed in large
The provisions of the two acts being so nearly alike, the reasoning and conclusions of the Federal courts respecting the Interstate Commerce Law apply with equal force to the Public Service Act of this State. Besides, the Appellate Division of the Supreme Court of the First Department, in the very recent case of Baltimore & Ohio R. R. Co. v. La Due, 128 App. Div. 594, held that the effect of the Federal legislation regulating interstate commerce is to remove the question of rate from the realm of private agreement. Says the opinion in that case: “ Every contract of carriage by a common carrier engaged in interstate commerce must, as a matter of law, be at the rate fixed and established as provided by statute, and no agreement as to the rate to be charged is valid or enforcible if it varies in any degree from the rate thus fixed and established. Texas & Pacific Eailway v. Alibene Cotton Oil Co., Supra, (204 U. S. 426); Gulf, Colorado, etc., R. Co. v. Hefley, 158 U. S. 98; Texas & Pacific R. Co. v. Mugg, Supra, (202 U. S. 242) ; Armour Packing Co. v. United States, 209 U. S. 56. The carrier is entitled to receive, and the shipper is required to pay, the rates fixed. Ho more can lawfully be demanded. No less can lawfully be accepted. In an action, therefore, to recover excess charges, it
And, while this decision of the Appellate Division relates tr contracts and shipments under the Interstate Commerce Law, yet, inasmuch as the Public Service Law of this State contains practically the same provisions respecting the fixing of freight rates and the filing and posting of tariff schedules for State commerce, that decision must be held to be controlling in a case under the State law and decisive of the case at bar.
My decision, therefore, is, that the contract between the plaintiff and defendant for a freight rate less than the tariff rate fixed by the schedule, filed and posted under the Public Service Act, was and is illegal, and does not protect the defendant, or bind the plaintiff, and that the plaintiff is entitled to recover the difference between the rate fixed by the filed and posted schedule and the amount paid under the said illegal agreement.
The motion to set aside the verdict and for a new trial is granted.
Motion granted