Southern Railway Co. v. Buckeye Cotton Oil Co. , 126 Miss. 562 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

This is a bill filed in the chancery court of Leflore county by the appellee, the Buckeye Cotton Oil Company, against the appellant, the Southern Railway Company in Mississippi, to recover demurrage charges alleged by the appellee to have been wrongfully and illegally collected from it by the appellant, and seeking discovery from the appellant in aid of its suit. The bill was demurred to by the appellant ánd a decree rendered overruling the demurrer and granting an appeal therefrom to settle the principles of the cause.

The bill alleges, in substance, the following facts: That the appellant, the Southern Railway Company in Mississippi, is a domestic corporation, with its line of road running through this state, and engaged as a common carrier in both intrastate and interstate commerce. That the appellee, the Buckeye Cotton Oil Company, is a foreign corporation engaged in this state in the cotton oil business, owning and operating a plant in the city of Greenwood, Leflore county, known as the Greenwood Mill. That said plant consists of the usual buildings and machinery necessary to carry on the cotton oil business, and in addition numerous railroad side tracks and house tracks on the property of the appellee, which connect with the tracks of the appellant and are used by the appellee in receiving cars from the appellant, and, after loading, in shipping the same out over the appellant’s line of railroad on which the plant of the appellee is situated. That on the 1st of February, 1914, the appellee and the appellant, being authorized to do so by the published tariff schedules of the appellant filed with both the Interstate Commerce Commission and the Railroad Commission of the state entered into what is commonly known as an “Average Demurrage Agreement,” by the terms of which the appellant and the appellee agreed and elected to put into force as to all shipments handled by appellant for the appellee at its said Greenwood Mill certain stipulations contained in such average agreement with reference to demurrage charges by the appellant against the appellee, the pertinent part of which average agreement is in the following language:

“When a shipper or receiver enters into the following agreement, the charge for the detention of cars, provided by section A of rule No. 7, on cars held for loading or unloading by such shipper or receiver, shall be computed on the basis of the average time of detention to all such cars released during each calendar month, such average detention to be computed as follows:

“(A) A credit of one day will be allowed for each car released within the first twenty-four hours of free time (except for a car subject to rule No. 2, section B, paragraph 5). A debit of one day will be charged for each twenty-four hours or fraction thereof that a car is detained beyond the free time. In no case shall more than one day’s credit be allowed for any one car, and in no case shall more than five (5) days’ credit be applied in cancellation of debits accruing on any one car. When a car has accrued five (5) debits, the charge provided for by rule No. 7 will be made for all subsequent detention, including Sundays and holidays.

“(B) At the end of the calendar month the total number of days credited will be, deducted from the total number of days debited and one dollar per day charged for the remainder. If the credits equal or exceed the debits, no, charge will be made to shippers or receivers on account of such excess or credits; nor shall the credits in excess of the debits of any one month be considered in computing the average detention for another month.

“(C) A shipper or receiver who elects to take advantage of this average agreement shall not be entitled to cancellation or refund of. demurrage charges under section A, paragraph 1 and'3, and section B of rule No. 8.

“(D) A shipper or receiver who elects to take advantage of this average agreement may be required to give sufficient security to the carrier for the payment of the balances against him at the end of each month.”

That during the period from February, 1914, to September, 1916, inclusive, the appellant demanded and collected of the appellee, under the authority of the said tariff schedules' and average agreement, the sum of five thousand, two hundred and forty-nine dollars that during said period under the said tariff and average agreement no demurrage charges could accrue to the appellent, and none could be lawfully assessed and collected against the appellee (quoting from the bill, “unless the car or shipment was actually placed in an accessible position for loading and unloading by the consignee, or at a point previously designated by the consignor or consignee, or until the carrier had attempted to make such actual placement and was unable to do so on account of some act or neglect of the consignee, or the inability of the consignee to receive the car, and then not until the carrier’s agent had given the consignee a written notice in accordance with said tariff of the cars it had been unable to deliver because of said conditions.” That said demurrage charges assessed and collected by the appellant against the appellee during said entire period (quoting from the bill further), “were made without regard to the time said cars were actually placed on the complainant’s private tracks for loading and unloading and without regard to the ability of the complainant’s mill to receive said cars on its said tracks when offered, and without regard to whether said mill had been notified of a claim of such inability by said defendant railway company; and that said assessments and charges were unauthorized by, and were in violation of, the provisions of said company’s tariff; and that in many of said bills rendered to and paid by complainant the complainant was charged by said defendant company with demurrage on cars before such cars were received by the defendant company, and while they were still in the hands of its connecting carrier.”

That the appellee had no information or record as to the number of cars so shipped, received, loaded, and unloaded at its plant, but that appellant has in its possession and under its control all such information. .That during said period while appellant was collecting said demurrage charges from the appellee the latter kept no record of the movement of cars on which it was charged demurrage, or of the bills rendered it by the appellant, nor did it have any convenient method of investigating the correctness of said demurrage charges, and that all such bills presented to it by the appellant were at the time believed by the appellee to be correct and were paid. That during said period the appellant kept and now has in its possession a complete record of the facts and circumstances attending the collection of each and every bill by the appellant from the appellee for demurrage. That many of the records kept by the appellee and bills rendered it by the appellant have been lost or destroyed, and therefore the appellee is wholly, unable to show even approximating the amount the appellant is due it on account of such demurrage charges so illegally paid.

The prayer of the bill is for discovery in aid of the suit and for a decree for the amount found to be due it by the appellant. In the prayer for discovery it is asked that appellant discover all records and correspondence of every kind in its possession or under its control covering the period from February 1, 1914, to September 1, 1916, inclusive, showing the history of the handling by it of each and every car in and out of appellee’s mill plant, the amount of demurrage collected on each, and the ground on which it was demanded and collected.

The following questions arise on the bill and demurrer:

First. Whether under the Interstate Commerce Act and the State Eailroad Supervision Act (Code 1906, sections 4826 — 4899) demurrage charges, illegally demanded and collected from a shipper by a carrier, may be recovered by the former from the latter. Counsel for appellant although they do not expressly concede that this question should be answered in the affirmative, have little to say about it in their brief and argument.

“A strict adherence to the published rates and charges is absolutely essential to avoid discriminations and preferences between shippers. Neither estoppel, ignorance of the shipper nor a mistake of the carrier’s agent can defeat the prime purpose of the law that the shipper must pay and the carrier must collect the lawfiil published rate. Hence an erroneous quotation of a rate by an agent of a carrier to a prospective patron binds neither shipper nor carrier, as both are presumed in law to know the correct rate.” Roberts’ Federal Liabilities of Carriers, vol. 1, section 263, pp. 466, 467.

The acceptance by the carrier of a greater or less amount than the lawful rate is made unlawful by the Commerce Act as well as our Railroad Supervision Act; and, if the amount accepted is less than the lawful rate, the carrier, may sue for and recover from the shipper the deficit, and, if it is more, the shipper juay recover from the carrier the excess above the lawful rate. Roberts’ Federal Liabilities of Carriers, vol. 1, section 270, p. 479. Therefore whatever excess, if any, above the lawful demurrage charges, appellant collected from the appellee, the latter has the right to recover back, and regardless of whether they were collected with the intent to violate the law, or through mere error.

Second. Whether the bill can be maintained in view of the fact that no officer of the appellant corporation was joined with it as a codefendant. It is contended on behalf of appellant that it cannot. To sustain this contention Pomeroy’s Equity Jurisprudence (4 Ed.), vol. 1, section 199, is cited as authority. The text of Pomeroy referred to is in this language:

“Where it is desired to obtain discovery from a corporation in a bill filed against it for that purpose, it is firmly settled by the authority of decided cases that a secretary or some other officer may and must be joined as a codefendant, from whom the discovery may be obtained by his answer under oath. This exception is based wholly upon considerations of expediency, since a corporation cannot make an answer on oath, nor be liable for perjury.”

Section 585, Code of 1906 (section 315, Hemingway’s Code), among other things provides: “The answer of a corporation need not be under its seal, but shall be sworn to by its president, general manager, or superintendent or other general officer, unless an answer under oath shall likewise be waived.”

The statute provides a method by which a corporation may answer under oath, and under it an officer answering1' for his corporation under oath would subject himself to prosecution for perjury for making a false oath thereto. The statute abrogates the reason of the rule as laid down by Pomeroy; it therefore follows that the rule has no application in this state.

Third. It is contended that discovery cannot be had because appellee is only seeking discovery of appellant’s tariffs schedules, covering demurrage'charges, on file with the Commerce Commission and the State Eailroad Commission, which are public records, as much within the knowledge of appellee as appellant, and equally accessible to both. We do not understand however, this to be the gravamen and purpose of the bill. Discovery is sought of the facts and circumstances covering the period inquired about, to which appellant applied its demurrage tariff and average agreement, the application of which the bill charges was illegally made by appellant. The bill seeks to discover how many cars were handled during that period on which demurrage was collected from appellee by appellant, and the facts and circumstances attending the handling of each, so that the court may be able to determine to what extent, if any, appellant collected illegal demurrage from appellee. It is alleged that the appellant kept and has a record of all these facts and circumstances, while appellee has no such record. We are of opinion that there is no merit in this ground of objection to the bill.

Fourth. It is urged on behalf of appellant that the bill is defective because it fails to charge by proper averments that appellee in every respect complied with said published tariffs and said average agreement. We are of opinion that the bill is sufficient in that respect. It alleges that appellee paid any and all demurrage charges demanded of it by the appellant; and in paragraphs 10 and 11 it is set out wherein appellant violated the published tariffs and the average agreement; and in the conclusion of paragraph 11 it is charged that appellant collected demurrage on cars before they were ever received by appellant, and while such cars were in the hands of its connecting carriers.

We find no error in the decree of the court below.

Affirmed and remanded.