109 Wash. 481 | Wash. | 1920
This action was disposed of by the superior court in favor of the defendant, upon the refusal of the plaintiff to further plead after the entry of an order overruling a general demurrer to affirmative defenses to the amended complaint. The plaim tiff has appealed.
The amended complaint alleges, in effect, that appellant is a corporation engaged in the fruit and produce business at Yakima, Washington, and on December 4, 1916, delivered to the respondent, a common carrier, at Yakima, Washington, a carload of apples to be transported to Wichita, Kansas. That, at the time-of delivery, respondent had in effect, governing such shipments, a tariff which provided for two kinds of service, and for which different charges were made. That one kind of service was known as “option one,” and was upon condition that the shipper assume responsibility for loss or damages occasioned by frost, freezing or overheating; and the other kind was known as “option two,” which provided that the carrier as-
In the first affirmative defense — the only one we deem it necessary to consider—the respondent alleged, in effect, that it is a common carrier engaged in interstate commerce. That, at the date of receiving the shipment in question, and at all times since November 8, 1915, it had in effect a tariff providing for two kinds of service for the transportation of perishable freight, one called option one and the other option two. That, under the terms of option one contract, the shipper assumes liability for loss due to frost or freezing, but if, in the shipper’s judgment, it is necessary to use lining, false flooring, or to install stoves, he might do so at his own expense, provide fuel (being
Primarily, it was the duty of respondent to accept the shipment under its ordinary common law liability for any injury or damage thereto' in transit expressed in option two contract, which was the service requested
The only question, therefore, is, Does the affirmative' defense state facts sufficient to save respondent from the liability shown in the amended complaint? A carrier in interstate commerce can enter into no contract of transportation for which there is not express authority in its filed and published tariffs. Texas & Pacific R. Co. v. American Tie & Timber Co., 234 U. S. 138.
The duly filed and published tariff applicable in this case provided two kinds of service for moving perishable freight, such as apples, at the choice of the shipper; the one under option one contract, at the risk of the shipper; the other under option two contract, at the carrier's risk. It is alleged in the answer that the refrigerator car was the only car constructed so that apples could be safely transported between the points mentioned in the month of December, and the only kind of a car in which apples could be moved, or ever have been moved, under the terms of option two contract, which fact was well known to appellant. It is further alleged that, prior to December, 1916, respondent had made ample provision for moving the apple crop of the Yakima section and, at that time, owned refrigerator cars sufficient to respond to all demands
. Abundant facts are alleged in the answer to bring the respondent within the rule of exemption from liability for its failure to supply appellant with a refrigerator car—the only kind of car suitable for the service under option two contract—-on December 4, 1916.
Calling attention to a portion of supplement No. 7 to the tariff, which is as follows:
*489 “1. (a) Under the provisions of this section of Tariff the terms ‘Perishable Freight’ will include:
“Any article requiring protection from cold, either by use of refrigerator or other insulated car, by artificial heat, or by both, including . . . Fruits, Fresh, . . .”
appellant argues that, because it speaks of the use of refrigerator or other insulated cars, by artificial heat, or both, it so modifies or controls the general tariff as to compel the common law liability of the carrier, regardless of cars, so that, in the event respondent was unable to supply a refrigerator car, it nevertheless was bound to make the shipment in a box car at its own risk. The argument is not justified. The whole of supplement 7, as set out in the pleadings, shows it still preserves the rights and obligations of the shipper and carrier under the two' kinds of contracts, option one and option two, as to that feature involved in this controversy; and besides, the language quoted and relied on by appellant shows upon its face it is intended' to enumerate what shall be included in the term “perishable freight,” and is easily separable from the subject-matter of the terms of the contracts with reference to the manner in which such freight shall be transported.
Judgment affirmed.
Holcomb, O. J., Main, Mackintosh, and Tolman, JJ., concur.