Augusta Brokerage Co. v. Central of Georgia Railway Co. , 5 Ga. App. 187 ( 1908 )

Seabrook, J.

In the court below a verdict was directed against the plaintiffs. They filed their motion for a new trial, and it was-overruled.' To the judgment overruling this motion the plaintiffs except. To determine whether the judgment overruling the-motion for a new trial was proper, we must consider whether, the direction oi the verdict by the court was proper; for if the ruling in the latter instance was right, necessarily the former ruling-was right. It is necessary, therefore, that we review somewhat at length the history of this case. It seems from the record that the Augusta Brokerage Company was engaged in buying cottonseed in car-load lots, along the dine of the defendant’s railway in this State, in competition with the oil mills in Augusta, and shipping them to parties in South Carolina, over the Southern Railway. The real controversy has been succinctly summarized in the body of the opinion in the case of Central of Ga. Ry. Co. v. Augusta Brokerage Co., 122 Ga. 649, as follows: “The oil mills at Augusta depended largely for a supply of cottonseed upon the territory through which ran the defendant railway company’s line; they delivered to it their manufactured products for shipment; so the railway company got a short haul on the raw cottonseed, and also a long haul on the reshipments made over its line of the manufactured products. It was not to the business interests of the railway company that cottonseed grown at local stations on its Augusta and Savannah branch should be shipped to oil mills located in South Carolina; for none of the manufactured products could then be secured for reshipment, at a high rate, over its road; its interests dictated that the cottonseed should stop at Augusta and be manufactured into oil and by-products by the mills located at that point. The railway company therefore determined that it would not, by voluntarily granting facilities to shippers which it was under no legal duty to aiford, supply the means of diverting from its road profitable, shipments which it otherwise would receive. On the other hand, the material business interests of the brokerage company demanded that it should be granted such facilities. It was a free lance, in open competition with the oil mills at Augusta in the buying of cottonseed at the lowest price possible, and all the seed purchased by it was shipped from Augusta over the Southern Railway to South Carolina mills. To reload shipments at Augusta for the South Carolina trip was expensive; to get through bills of lading, or to secure the consent of the defendant company that its loaded cars be delivered to the Southern Railway at Augusta so that the seed might be carried to its ultimate destination without reloading, would render the business of the brokerage company profitable, the business of the Augusta oil mills less remunerative. Their interests and those, of the defendant railway company were coincident; its interests and those of the brokerage company conflicted.” Upon this state of facts the Supreme Court held: “As to issuing through bills of lading or furnishing its cars to connecting carriers, in order that shipments may he carried to ultimate destination without reloading at terminal points, a carrier may discriminate against cottonseed, provided all shippers of that commodity are treated alike. That such discrimination is dictated by the business interests of the carrier and really affects but a single shipper, because he is the only person at a terminal point who is engaged in shipping cottonseed out of the State, can not alter the matter.” In the body of the'decision, referring to the refusal to issue through bills of lading, or to consent that its loaded cars be delivered to the Southern Bailway at Augusta, that court further says (p. 650) : “The railway company acted as the average business man would have done;” and, “in declining to grant the privileges,which the brokerage company wished to enjoy, the railway company merely adopted a policy which was within its legal right as a carrier. State v. Railroad Co., 104 Ga. 437 [30 S. E. 891]. . . The railway company had the undoubted right to refuse to make through shipments of any freight, or to permit its cars to leave its line of road, however they might be loaded.”

Hence it will be seen that in so far as the plaintiffs’ ease rested upon the alleged violation of rule 36 in the two respects referred to, there has been a definite and positive adjudication against them; and this court is bound by such adjudication. But this is by no means all of the plaintiffs’ case. In their declaration they allege that rule 36 was violated by the defendant in another respect, and that such violation resulted in damage to them. They say, that it is a common practice of the. defendant railway company to make delivery of car-load lots of cottonseed to the warehouses of the cottonseed-oil mills at Augusta, having tracks connected with the tracks of the defendant; that in September, 1903, the plaintiffs shipped to Augusta from Green’s Cut, Georgia, a station on the line of the defendant’s road, car No. 4769 loaded with cottonseed, and, when said ear arrived at Augusta, a member of the plaintiffs’ firm presented to the proper officer of the defendant the bill of lading, and requested that the car be delivered on the side-track of the plaintiffs’ warehouse. This request was refused; and it is claimed that such refusal was a denial to the plaintiffs of “equal facilities in the transportation and delivery of freight,” and was “an unjust discrimination” against them, in violation of rule 36 of the Bailroad Commission of Georgia; and that in eon-sequence of the defendant’s failure to deliver the car-load of cottonseed, the plaintiffs were put to the expense of five dollars, which sum is claimed as- actual damages. It is further claimed that this refusal was a part of a premeditated plan to drive the plaintiffs out of the business of buying cottonseed; and it is characterized as a wilful violation of law, which renders the defendant liable for exemplary damages. By reference to the 31st Annual Report of the Railroad Commission of Georgia, it is discovered that the rules have been amended and rearranged, and that rule 36 is now rule 2, and that the language of this rule has been changed (see page 20). It appears, however, that rule 36 was in force when this controversy arose. The material portion of this rule reads as follows: “The several railroad companies in this State, in the conduct of their intrastate business, shall afford to all persons equal facilities in the transportation and delivery of freight, without unjust discrimination in favor of or against any; and wherever special facilities are afforded to one shipper in the transportation or delivery of freight in car-load lots or less, whether upon a special rate authorized by this commission, or otherwise, -such company shall be bound to afford to any other shipper or shippers, under substantially similar circumstances, like facilities upon like rates.” It will be observed that this rule applies, not to interstate, but to intrastate business only. It is necessary, therefore, in determining whether the plaintiffs’ complaint is properly laid, to ascertain the character of the shipment in car No. 4769 in this respect, and see if it falls within the operation of rule No. 36" of the Railroad Commission of Georgia.

The plaintiffs were avowedly buyers of cottonseed for South Carolina parties. It is admitted that the cottonseed they bought was intended ultimately to be shipped to South Carolina; and presumably their request that this car be placed on the side-track at their warehouse was intended in some way to facilitate shipment to its ultimate destination in South Carolina. But the intention of the consignee as to the future disposition of his property by shipping it over another line, under a new bill of lading, into another State can not change an intrastate shipment into an interstate shipment. The law is not dealing with the intention of the consignee, but solely with the relation of the railroad to the freight transported. A seller in Georgia might conduct with a buyer in South Carolina an interstate business as between themselves; but if the railroad refuses to carry beyond its own line, and compels unloading at its terminus in Georgia, such business in its relation to the railroad is wholly intrastate. “Business done within this State can not be made to mean business done between this State and another State.” Pacific Express Co. v. Seibert, 142 U. S. 350 (12 Sup. Ct. 253, 35 L. ed. 1035). “The fact that the owner of merchandise, offered to a carrier for transportation from one point to another in the same State, intends to have it further transported by a second carrier into another State does not make such first transportation interstate commerce, or render the carrier subject to the control of the commission in respect to it, even though such first carrier may be informed [italics ours] of the ultimate destination of the merchandise.” Mo. & Ill. R. Co. v. Cape Girardeau R. Co., 8 I. C. C. Rep. 96. We think, the expression used by the Supreme Court in the case of Central of Georgia Ry. Co. v. Augusta Brokerage Co., supra, that “The plaintiff appears to have been engaged altogether in making interstate shipments of cottonseed,” etc., can only be true in the sense that the owner was in ■Georgia and the buyer in South Carolina, and can not be true in respect to the defendant railroad’s relation to the contract. It appears that when using this expression the court had in mind the refusal of the defendant railroad company to deliver its cars to the Southern Bailway, and not the refusal of the defendant rail'road company to place its loaded cars on the, side-track at the plaintiffs’ warehouse. Briefly stated, the Supreme Court did not decide that the shipment of cottonseed from Green’s Cut, or elsewhere in Georgia, to Augusta was interstate business, even though, after being unloaded into the plaintiffs’ warehouse, it was intended to be reloaded into other cars for shipment to points in South Carolina. Hence what we here rule is not in conflict with the decision of that court.

There being some evidence tending to show that it now is and for years past has been the common practice of the defendant railroad company to deliver cars of cottonseed upon the sidetrack of the oil mills at Augusta, and to other parties; and further, that notwithstanding the plaintiffs had a side-track of standard gauge, alongside their warehouse, connected with the •defendant’s line of railway at Augusta upon which delivery of a car-load of cottonseed consigned to them was requested by the plaintiffs and refused by the defendant, it follows that such a refusal was a denial to the plaintiffs of “equal facilities in the transportation and delivery of freight,” and was “an-unjust discrimination” against the plaintiffs, in violation of rule 36 of the Bail-road Commission of Georgia. The evidence on this branch of the case should have been submitted to the jury, for their determination, under appropriate instructions by the court. It follows* therefore, that the direction of the verdict was error.

Judgment reversed.