158 Iowa 483 | Iowa | 1913
The petition was in two counts. In the first plaintiff claimed damages because of unreasonable delay in the transportation of cattle from Rock Valley to Chicago, 111. The evidence in support thereof was the same as that' reviewed on the former appeal and held insufficient to sustain the allegation (Siemonsma v. Railway, 137 Iowa, 607), and therefore as to this issue, the verdict was rightly directed.
But we prefer to put our decision on another ground, for that it finally disposes of the case, even though not suggested on the trial nor in this court save in oral agreement. The trial court held the oral agreement not binding on defendant because of the subsequent written contracts of shipment, and that the agreement, if made, was invalid, is only a better reason for a correct ruling.
The oral arrangement, if as alleged, was but a contract for a preference in the shipper’s favor, a discrimination prohibited by the federal statutes in the clearest terms. By the third section of Interstate Commerce Act Feb. 4, 1887, chapter 104, 24 Stat. 379 (U. S. Comp. St. 1901, page 3156), it was made unlawful to.give any undue or unreasonable “preference or advantage” to any particular person or to subject any particular person to “any undue or unreasonable prejudice or disadvantage in any respect whatever.” Carriers like defendant are by the sixth section of the act to keep posted for public inspection printed schedules showing rates, charges, and classifications, and “any rules or regulations which in any wise change or affect or determine any part or the aggregate of such aforesaid rates and fares and charges. ’ ’ The same section also provides as follows: “And when any such common carrier shall have established and published its rates, fares and charges in compliance with the provisions of this section, it shall be unlawful for such common carrier to charge, demand, collect, or receive from any person or persons a greater or less compensation for the transportation of passengers or property, or for any services in connection therewith, than is specified in such published schedule of rates, fares, and charges as may at the time be in force.”
By the act of February 19, 1903, known as the Elkins
It cannot be challenged that the. great purpose of the act to regulate commerce, while seeking to prevent unjust and unreasonable rates, was to secure equality of rates as to all, and to destroy favoritism, these last being accomplished by requiring the publication of tariffs, and by prohibiting secret departures from such tariffs, and forbidding rebates, preferences, and all other forms of undue discrimination. To this extent and for these purposes the statute was remedial, and is therefore entitled to receive that interpretation which reasonably accomplishes the great public purpose which it was enacted to subserve. That a carrier engaged in interstate commerce becomes subject as to such commerce to the commands of the statute, and may not set its provisions at naught, whatever otherwise may be its power when carrying on commerce not interstate in character, cannot in reason be denied.
The manifest purpose of these federal statutes was to compel the carrier, as a public agent, to give like treatment to all, and little argument would seem necessary to show that to an undertaking to carry one shipper’s cattle by special train at the same rate or tariff exacted from another routed
The implied agreement of a common carrier is to carry safely and deliver at destination within a reasonable time. It is otherwise when that action is for a breach of a contract to carry within a. particular time, or to make a particular connection, or to carry by a particular train. The railroad company, by its contract, became liable for the consequence of a failure to transport according to its terms. Evidence of diligence would not excuse. If the action had been- for the common-law carrier liability, evidence that there had been no unreasonable delay would lie an answer. But the company, by entering into an agreement for expediting the shipment, came under a liability different and more burdensome than would exist to a shipper who made no such special contract. For-such a special service and higher responsibility it might clearly exact a higher rate. But to do so, it must make and publish a rate open to all. This was not done. The shipper, it is also plain, was contracting for an advantage which was not extended to all others, both in the undertaking to carry so as to give him a particular expedited service, and a remedy for delay not due to negligence. An advantage accorded by special agreement, which affects the value of the service to the shipper and its cost to the carrier, should be published in the tariffs; and for a breach of such a contract relief will be denied, because its allowance, without such publication, is a violation of the act. It is also illegal because it is an un*488 due advantage in that it is not one open to all others in the same situation.
See, also, Winn v. American Express Co., 149 Iowa, 259.
This reasoning seems unanswerable, and it necessarily follows that the oral agreement is invalid, and that recovery might not be had for any injury occasioned by its breach. The verdict for defendant was' rightly directed. — Affirmed.