Illinois Cent. R. v. King , 125 Miss. 734 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

The appellee, King, sued the railroad company for the loss of a package, or the contents from a package, shipped by freight and marked “crockery,” which contained jewelry and other articles of value which are not usually shipped by freight. The defendant filed two pleas, one denying that it was guilty of the trespass and wrongs complained of, or any part thereof, and the other denying that it undertook or promised in the manner and form as plaintiff hath complained of.

The principal defense is that the agent of the railroad had no authority to contract so as to bind the company, because it bad no tariff specifically providing for tbe transportation of jewelry; it being contended that the railroad company was not entitled or authorized to transport jewelry and articles of unusual value by freight, because no tariff specifically providing for transportation charges for such articles had been filed with the Interstate Commerce Commission or the State Railroad Commission. It is also contended that the plaintiff was not entitled to recover because the bill of lading issued to him described the property as “crockery,” and there was nothing in the bill of lading to indicate that the box contained articles of unusual value or any other articles than crockery.

The plaintiff testified that he went to the station agent and disclosed to him the true contents of the box and the value of the articles, and asked if he could take and be responsible for the goods, and, if not, that he would have carried them back home, and that the agent told him that he would. The plaintiff testified that the express office was closed, and that with full knowledge of the contents of the box the agent of the railroad company marked the box “crockery.” When the box reached Kosciusko, some wire which had been used in wrapping the box had been cut, broken, or removed, and the plaintiff contended that the contents of the box had been removed, at least some jewelry, described in the suit; while the railroad company’s agent at Kosciusko contended that, while the box had been apparently opened, or the wire wrapping removed, that he examined the contents of the box at the request of the plaintiff and found each article which plaintiff then contended had been shipped in the box. There was a verdict for the plaintiff for one hundred fifty-six dollars and twenty cents, which was one-half of the amount sued for, and from this judgment this appeal is prosecuted.

The bill of lading under which the goods were shipped contained, among other provisions, the following:

“No carrier will carry or be liable in any way for any documents, specie, or for any articles of extraordinary value not specifically rated in the published classification or tariff, unless a special agreement to do so, and 'the stipulated value of the articles are indorsed liereon.”

It is contended by the appellant that, inasmuch as the items sued for are not specifically listed in the bill of lading, and inasmuch as the special agreement with the agent was not noted on the bill of lading, that there can he no recovery by reason of this provision of the contract. The appellant relies upon a number of cases predicated upon the Acts of Congress and the tariffs and classifications approved by the Interstate Commerce Commission. Under the federal law applicable to interstate commerce, a carrier is prohibited from carrying any article unless its tariff for so doing has been filed with and approved by the Interstate Commerce Commission. One provision of the Interstate Commerce Act provides:

“No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; . . . nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.” U. S. Comp. St. section 8569 (7).

Of course, so far as interstate commerce is concerned, this act controls, and a carrier cannot lawfully carry in interstate commerce articles unless it has filed its tariff with the Interstate Commerce Commission. But the tariffs of the Interstate Commerce Commission' and the form of contracts approved by the Interstate Commerce Commission are not binding upon the states as to intrastate commerce.

The shipment in question in this suit moved wholly in intrastate commerce, and is governed entirely by the laws of this state. Under section 184 of the state Constitution, it is provided that:

“All railroads which carry persons or property for hire shall be public highways, and all railroad companies so engaged shall be common carriers,” etc.

By section 4839, Code of 1906 (section 7624, Hemingway’s Code), it is provided:

“The track of every railroad which carries persons or property for hire is a public highway, over which all persons have equal rights of transportation for themselves and their property, and for passengers, freight, and cars, on the payment of reasonable compensation to the railroad for such transportation; and if any railroad corporation, or person managing a railroad, shall demand and receive unreasonable compensation for the service rendered in the transportation of passengers or freight, or more than allowed by the tariff of rates fixed by the Commission, or by such person or corporation with its approval, or more than the rates specified in a bill of lading issued by authority of the railroad; or if any railroad shall, for its advantage, or for the advantage of a conencting line, or for that of any person, locality, or corporation, • make any discrimination in transportation against any person, locality, or corporation, unless authorized by the Commission; or if any railroad company shall charge more for a short haul than for a long one, under substantially similar circumstances and conditions^ without the sanction of the Commission, such person or corporation, in either case, shall be guilty of extortion, and may be punished therefor criminally, besides being liable civilly.”

By section 4091, Code of 1906 (section 6720, Hemingway’s Code), a railroad company in this state has power to do an express business over its line or lines of railroad. Under section 4842, Code of 1906 (section 7627, Hemingway’s Code), it is made the duty of every railroad or the common carrier to furnish to the Commission its tariff of .charges for transporting passengers and freight, and it is made the duty of the Commission to revise, fix, and regulate the charges so as to allow reasonable compensation to the railroad company for the services to be-rendered. But the railroad company is not prohibited by these statutes from making a contract for the carriage' of goods either by freight or express where no tariff has been filed. Of course, it is its duty to file its tariff of charges, as soon as they are fixed, with the Commission for approval and for revision in proper cases. But in case through oversight or for other reason the railroad company has not promulgated and filed a tariff for the carriage of particular articles, it is not prohibited from carrying such articles for reasonable compensation, but under the statutes above referred to making it a highway, it is under obligation to transport any property that may be moved over a highway without danger or damage to other persons or property, for. reasonable compensation. It has, by the law of the state, the power to do an express business, and under this, of course, it may move and transport such articles as are usually transported by express, and fix reasonable charges therefor. Such charges, of course, to be subject to revision by the railroad commission. None of the articles involved in the present shipment are prohibited from being transported, and are not dangerous to either person or property, and the railroad company had the right to contract for their transportation.

The station agent represents the railroad company in making contracts for the carriage of property, and we see no reason why he could not make the contract involved here. There is a dispute betiveen the plaintiff and the agent of the defendant as to the facts as to what was said ■and done at the time the goods Avere tendered for- shipment, and as to their condition when taken from the railroad, and as to the condition of the shipment when inspected by the plaintiff. But all these questions have been settled by a good and lawful jury. The judgment will therefore be affirmed.

Affirmed.