Sutton v. St. Louis & San Francisco Railroad, 140 S.W. 76

Sutton v. St. Louis & San Francisco Railroad

140 S.W. 76

Mo. Ct. App.

1911

Check Treatment

NORTONI, J.

This is a suit in replevin for a lot. of household goods. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff shipped his household goods and a cow in one car, under rating as an “emigrant outfit,” from Patton, Illinois, over the Big Four Railroad, the St. Louis & Southwestern Railroad, and defend*687ant, St. Lonis & San Francisco Railroad, to Steele, Missouri. Thе car arrived at Steele, Missouri in due time and defendant permitted plaintiff to remove the cow therefrom but retained the household goods on account of a balance of $31.20 freight charges which it asserted were unpaid. Plaintiff declined to pay this amount, because as it is said, he paid the entire freight $33.60 to the agent of the Big Four Railroad ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍at Patton, Illinois, for the through transportation of the car to Steele, Missouri. After contending over the matter about two weeks, plaintiff instituted this suit in replevin for the household goods and prevailed at the trial. The proof is uncontradicted on both sides, and the question presented thereby is not difficult of solution, for it has several times been determined by this and other courts.

By plаintiff, it is shown that he paid the agent of the Big Four Railroad $33.60 for transportation of the car over the thrеe railroads, the Big Four, via Cairo, Illinois, the St. Louis & Southwestern, via Lilburn, Missouri, and defendant, St. Louis & San Francisco to Steele, Missouri, but upon the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍car arriving at Cairo, Illinois, the St. Louis & Southwestern Railroad Company declined to receive it under this arrangement, as the freight charged was insufficient to compensate all оf the carriers in accordance with the tariff rates approved by the Interstate Commerce Commission, and this was an interstate shipment. It seems a mistake had been made by the Big Four agent at Patton and that when the car reached Cairo, Illinois, all of the amount charged, save $6.80, had been consumеd. Upon being informed at Cairo that the St. Louis & Southwestern Railroad would not receive the car, plаintiff surrendered his shipping contract to the agent of that road and rebilled the shipment from there over the St. Louis & Southwestern via Lilburn, Missouri, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and 'defendant St. Louis & San Francisco line to Steele, Missouri, and on this reshipmеnt received a credit of *688$6.80, the balance to his credit on account of $33.60 paid to the Big Four agent at P’atton, Illinois.

It is conclusively shown in the case that the tariff rate on such shipment, fixed and approved by the Interstate Commerce Commission and duly filed and promulgated by it and posted by defendant, is $38 pеr car, such as this one, from Cairo, Illinois to Steele, Missouri. On this, plaintiff was, as before said, credited $6.80, and he declined to pay the remainder of $31.20 demanded on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍completion of the transportation. Because of his refusal to pay this, defendant retained the goods. Replevin lies only for goods wrongfully dеtained. Indeed, the wrongful detention is the gist of the action and if it appears defendant has so much аs a special property in the goods supporting a right to immediate possession at the time, thе action must fail. [Barnes v. Plessner, 137 Mo. App. 571, 119 S. W. 457.] Every common carrier has a lien on the goods carried for his cоmpensation and no one can doubt the right of such carrier to' withhold the goods until tbe freight charges are paid and this lien is discharged. [Hutchinson on Carriers (3 Ed.), secs. 864, 867; Wells v. Thomas, 27 Mo. 17.] It is entirely clear that defendant rightfully dеtained the goods and that it was éntitled to possession thereof 'at the time the suit was instituted, for, accоrding to the new billing made by plaintiff at Cairo, Illinois, over the St. Louis & Southwestern Railroad and defendant railroad, which constituted a new contract of shipment, a freight charge of $38 accrued between thosе points, on which he received a credit' of $6.80. On this contract, a balance of $31.20 was due defendant on delivery of the goods at Steele, Missouri, and until ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍this amount was paid, defendant had a right to retain pоssession because, of its special property in virtue of the freight lien. But it is asserted for plaintiff that, аs the Big Four agent at Patton, Illinois, accepted $33.60 in full and contracted to transport the car tо Steele, Missouri, *689he is entitled to possession of the goods, notwithstanding he surrendered the billing, and entered intо a new contract at Cairo, Illinois, to the end of completing the transportation. The shipment invоlved is interstate in character and falls within the purview of the Interstate Commerce Law. Because of this, it should be said of the suggestion above put forward that the rate duly fixed, approved and promulgаted by the commission and posted by defendant is not the subject of contract at all but instead is fixed and determined by force of the law. So much has been pointedly determined by the Supreme Court of the United States. [Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242.] This being true, the contract for a lesser rate than that fixed by the Interstate Commerce Commission, whether intentionally or mistakenly made by the Big Four agent at Patton, Illinois, is of no force or effeсt and defendant is entitled to retain the goods, notwithstanding, until the true and lawful rate is paid. Such is the course оf decision now well established. [See Gerber v. Wabash R. Co., 63 Mo. App. 145; Chicago, etc., R. R. v. Hubbell, 54 Kan. 232; see, also, Drey, etc., Glass Co. v. Mo. Pac. R. Co., 156 Mo. App. 176, 136 S. W. 757.]

In no view is plaintiff entitled to recover, and the. judgment should therefore be reversed and the cause remanded with directions to the trial court to proceed to reinstate defendant’s rights. It is so ordered.

Reynolds, P. J., and Caulfield, J., concur.