86 F. 846 | 5th Cir. | 1898
The Pond-Decker Lumber Company, intervener, wished to establish a sawmill plant at Deckerville, in Arkansas. It opened negotiations with the owners of a fully-equipped sawmill plant located at Tallapoosa, G-a., with the intention and expectation, if it purchased the same, to move it by rail from Tallapoosa, Ga., to Deckerville. The most direct railroad route is over the Georgia Pacific Railway to Birmingham, ■ 108 miles; thence, by the Kansas City, Memphis & Birmingham road, to Memphis, 251 miles; and thence, by the Kansas City, Ft. Scott & Memphis road, to Gilmore, Ark., 25 miles. For the two railroads last named, J. J. Fletcher was the general freight agent. Prior to the purchase of the mill plant at Tallapoosa, and pending the negotiations therefor, and with a view to its consummation, the intervener corresponded with Fletcher to ascertain what through rate of fare his roads could give on this freight from Tallapoosa to Gilmore on the basis of there being six or seven car loads of it. Fletcher, as such general freight agent, wrote to the intervener that his roads could deliver the freight from Tallapoosa to Gilmore at the rate of 30 cents per 100 pounds. Thereupon the intervener purchased the sawmill and fixtures at Tallapoosa, and delivered it to the Georgia Pacific Railway, the amount of the freight so delivered being 11 cars instead of 6 or 7, and the gross weight thereof 339,200 pounds. The delivery was made in three lots, for each of which a through bill of lading was taken, on the face of each of which was clearly designated the route by which the cars should be taken, viz. by the Kansas City,
The intervener was allowed to appeal, and assigns as error: (1) The court erred in decreeing that the intervener is not entitled to recover the full amount found in its favor by the special master, the sum of $949.76. (2) The court erred in decreeing that the intervener is not entitled to recover interest on that amount, or on any other amount, from the 8th of December, 1894. (3) The court erred in decreeing that the exceptions taken to the master’s report, so far as they are made to the excessiveness of the finding in favor of the intervener, be sustained. The appellee contends that the special contract'for 36 cents per 100 pounds was void, because (1) it was in violation of the clause of the interstate commerce act which requires a uniform rate to be charged to all shippers alike, and showed that this was less than the regular rate; and (2) that, even if the contract was binding, the defendant had no notice of its special terms, and would not be bound by the damages, because they were not such as would flow from the tortious act, and would not be within the contemplation of the parties.
It is not suggested that the contract between the intervener and Fletcher without reference to the interstate commerce act was not a valid contract, and one which the intervfener could have enforced against the corporations that Fletcher was authorized to bind. Counsel for the appellee have not, either in their oral argument or in their brief, pointed out to us the particular provision or provisions of the interstate commerce act which declare or render the contract between Fletcher and the intervener invalid. When they do undertake to locate the provision or provisions of that act which have that effect, we think they will experience some difficulty. Leaving out of view for the present all consideration of the very exceptional character and amount of this through shipment, interided to have been made over three connecting but independent carriers, starting in one state, passing partly through three other states, and terminating in a fifth state, we think the rule suggested by the contention of counsel would put an unreasonable burden upon shippers. It would require that each shipper should be an expert rate-sheet reader. Besides that, he would
The opinion of the learned judge of the circuit court, which appears
“The contention of counsel for the intervener is, however, that the circumstances surrounding this shipment were such as to put the receivers on notice that a special rate had been given the shippers. What are these circumstances? First. The unusual character of the shipment. It was an entire sawmill, so far as it could be taken down, and it was all shipped at one time. There were eleven car loads embraced in one shipment. Secondly. It was billed to go a particular route. It is claimed that these circumstances are sufficient to put a railroad man familiar with the practice of railroads and freight agents in such matters on notice that a less rate than the regular rate would be given, and that an experienced railroad man would also know that the same could be given without violating the interstate commerce law, or any law, because it was an unusual shipment, and there would be no discrimination or undue preference against other shippers, as no shipment of similar character would ever probably be made. Conceding that the agents of the receiver were put on notice that something less than the usual rate might be allowed for a shipment of this character, can it be held that they must take notice and must contract in contemplation of a mistake on the part of the general freight agent of connecting-lines? It is a fact established in the case, and the master so finds, that the rate given by Fletcher, the general freight agent of the connecting lines, being a remarkably low rate when compared with the regular rate, was made by mistake. It cannot be true that the initial carrier can be held to have had in contemplation at the time goods are received for carriage that a connecting line would make a mistake as to the rate on the goods given the shipper. It seems from the facts in this case that the general freight agent was under a misapprehension as to what the regular rate was. Now, if this general freight agent, with a knowledge of what the regular rate was, had made some reasonable reduction from it, and the proof showed that such reduction was usual or even frequent in a shipment of unusual character, and a recovery was based on such facts, there would be some ground for sustaining it under the rule contended for on the part of the intervener.”
Tbe evidence clearly establishes that the defendant, not negligently, but willfully, sent the goods by its own line, from Birmingham to Winona, and by the Illinois Central Railroad from Winona to Memphis, and that, by tbis willful misrouteing, intervener was in fact damaged to the extent found by the special master, viz. $949.76, wbicb it'was compelled to part with on the 8th of December, 1894, in order to get its goods. In the case of Langdon v. Robertson, 13 Ont. R. 497, which seems to bave exercised a controlling influence over the judgment of the learned judge of the circuit court, it is announced that the measure of damages furnished by the evidence (in that case claimed to be most like tbis) is either nominal or the full amount paid by the plaintiff; and further on it is said that, if the plaintiff recover, he is entitled to interest from the time be paid. It seems to us that if the delivery to, and receipt by, the Georgia Pacific Company, of tbis freight, and the routeing of it as required and is conceded in the through bills of lading, was sufficient to put the agents of the receiver on notice that less than the combination of the locals of the connecting independent carriers might bave been allowed by the other two, -who seem to bave been under a common control, and whose freight agent, Fletcher, bad a right to contract for a through rate from Tallapoosa, wbicb right he could only bave by some contract or agreement, express or implied, with