Oregon R. & N. Co. v. Coolidge

116 P. 93 | Or. | 1911

Mr. Justice Burnett

delivered the opinion of the court.

1. The plaintiff declares upon an original agreement of the defendant to pay the freight at the legal rate established in pursuance of the interstate commerce law, alleging that rate to be 60 cents per hundred pounds. Both the agreement and the alleged rate having been denied, it was incumbent upon the plaintiff to prove them. It may be remarked in passing that there is no evidence in the record showing that any contractual relations existed directly between the plaintiff and any of the carriers mentioned in the pleadings. At best it only shows that a consignor at Portland, Colorado, loaded the property on a car, and intrusted it to the Denver & Rio Grande Railroad Company, and directed its shipment to the defendant at La Grande. The most that the testimony shows in that respect is that the defendant found his property in the possession of the plaintiff at La Grande under its claim of $166.25 for freight, which he paid, and received his property.

2. The principal question, however, in this case hangs upon whether or not the plaintiff offered sufficient proof that the legal rate was 60 cents per hundred pounds, as alleged in the complaint. The only testimony offered on that question consisted of extracts from freight tariffs jointly filed with the Interstate Commerce Commission by the plaintiff and other railway companies participating in the shipment, as mentioned in the complaint. Objection is made by the defendant that these extracts were not properly certified, but this was practically abandoned at the argument. In addition to reciting his custody of the schedules and tariffs of rates, the certifying officer, the secretary of the Interstate Commerce Commission, states that the copies had been compared by him with the originals in his custody and that the same are correct transcripts of the parts thereof particularly specified in said documents. This is a substantial compliance with our statute on that subject. Section 771, L. O. L. The secretary further states that these extracts show “the combination through rates based on Portland, Oregon, and rules and regulations governing the same applicable to a shipment of cement moving between April 15, 1907, and August 15, 1907, from Portland, Colorado, to La Grande, Oregon,” and further states that there are “no through joint rates on file with the said commission from and to the said points of origin and destination applicable to said shipment between said dates,” meaning between Portland, Colorado, and La Grande, Oregon. It is the duty of a certifying officer only to state what his record shows in terms quoted in the transcript. It is not for him to impart legal effect to the excerpts quoted. His statement that the extracts show the combination through rates and rules and regulations governing the same and that they are applicable to a shipment, are conclusions of law and are not binding upon the court. It is for the court to construe the legal effect of documents offered in evidence. Section 136, L. O. L. Within the meaning of this section it was. not error when the circuit court refused to allow a rate expert, produced by plaintiff as a witness to construe the certified copies of the extracts from the rate sheets above mentioned and to declare to the jury therefrom the amount of the legal rate.

3. The first extract is from supplement No. 17 to the transcontinental freight bureau, west-bound tariff No. 4C, effective June 24, 1905. It states that “the following special commodity rates will apply only from and to points designated, except that rates applying from Missouri River common points will apply as maxima from Colorado terminals and Colorado common points.” It gives the rate over the lines of the companies mentioned in the complaint on cement from Portland, Colorado, to Portland, Oregon, at 35 cents per hundred pounds. It also appears from a further extract from the freight tariff of the plaintiff filed with the Interstate Commerce Commission that the special commodity rate on cement from Portland, Oregon, to La Grande was 25 cents per hundred pounds. A still further extract certified by the secretary from the transcontinental freight bureau circular No. 9-C, filed October 6, 1906, that “rates applicable, to or from intermediate Pacific Coast points as published in current east-bound and west-bound tariffs of the transcontinental freight bureau or subsequent issues thereof will apply to or from stations named herein on the lines of the O. R. & N. Co. in Oregon, Washington, and Idaho * * west bound; where lower through rate can be made by use of the terminal rate to Portland plus the local rate from Portland to destination, such lower through rate will govern.” It also appears that Portland, Oregon, takes a terminal rate and La Grande takes rates applicable to or from intermediate points. Do these extracts thus certified prove the plaintiff’s allegation that 60 cents was the legal rate for 100 pounds on a shipment of the kind in question from Portland, Colorado, to La Grande, Oregon.

The plaintiff contends that it is not only entitled to, but required to, charge the terminal rate from Colorado to Portland, Oregon, 35 cents, which the defendant has already paid, but also an additional 25 cents, being the local rate from Portland, Oregon, back to La Grande. Under the paragraph relating to west-bound freight above quoted, this combination of the terminal rate of 35 cents plus the local rate back to the ultimate destination, La Grande, can be used only when that sum, amounting to 60 cents, is lower than the through rate, being a rate direct from Portland, Colorado, to La Grande. No evidence whatever was offered of any such through rate. Hence the court was without any standard of comparison whereby to determine whether the combination of the terminal and local rate would be less or greater than the through rate. The certificate of the secretary of the Interstate Commerce Commission, indeed, states that there is no through joint rate on file with the Commission between Portland, Colorado, and La Grande, but this is not enough in our judgment to authorize or require the plaintiff to charge for a haul from Portland, Colorado, through La Grande to Portland, Oregon, and back again to La Grande, when the only service rendered was a direct haul from the point of shipment to the point of delivery. If any evidence had been given of a through rate the court could then have determined whether it was greater or less than the combination rate charged by the plaintiff. Section 2 of the act of Congress of June 29, 1906, amendatory of the original interstate commerce law (24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]), provides that “if no joint rate over the through route has been established, the several carriers in such through route shall file, print, and keep open to public inspection the separately established rates, fares, and charges applying to the through transportation.” 34 U. S. Stat, at Large, p. 586 (U. S. Comp. St. Supp. 1909, p. 1153). The plaintiff failed in its proof in that it gave no evidence either of a joint rate or of what would operate in its place, namely, the several rates charged by each carrier applicable to a through shipment over the several lines between the point of origin and the point of delivery of the shipment the sum of which would be equivalent to a through joint rate. In our judgment, the testimony offered on this point was not sufficient to prove the allegation that 60 cents per hundredweight’was the legal rate for which the defendant was liable, if at all.

4. It may be well conceded that if the legal rate had been properly proven its reasonableness could not be questioned in this action. Baldwin Land Co. v. Columbia Railway Co., 58 Or. 285 (114 Pac. 469).

5. It may also be conceded as established by the authorities that the transportation company has the right at the outset to establish its rates without previous application to the Interstate Commerce Commission and that the question as to the reasonableness of such rate can be heard, in the first instance at least, only before that Commission; but, presuming that the transportation companies concerned in the joint shipment have obeyed the law, the court below was authorized to conclude that in accepting the shipment and delivering the same to the defendant on payment of a rate of 35 cents per hundred it had lawfully fixed that as the rate from the point of origin to La Grande and having fixed it once and closed the transaction in question, it could not, so far as appears in the evidence in this ease, afterwards fix another rate, and make it relate back to the closed incident as a basis upon which to demand an increase in the charges.

The judgment is affirmed. Affirmed.