Willson v. American Railway Express Co. , 197 N.Y.S. 600 ( 1922 )

Hubbs, J.:

The defendant is a common carrier engaged in interstate commerce. On July 18, 1919, the plaintiff delivered to it a carload of cantaloupes, at Horatio, Ark., to be carried and delivered to Kivits Brothers at Terre Haute, Ind., under the provisions of the uniform express receipt, the express charges to be paid by the consignee. The car arrived at Terre Haute on the morning of July twenty-first and the consignees requested the defendant to place it on their track. On July twenty-second the plaintiff received a telegram from Kivits Brothers saying that they could not accept the cantaloupes. The plaintiff then asked the defendant’s agent at Horatio, Ark., if the car could be diverted from Terre Haute to the Butner Produce Company, at Lexington, Ky., and was informed that it could be and that the charges would be about the same as from Horatio direct to Lexington. The plaintiff gave the agent a written order to divert the car and the agent telegraphed the agent at Terre Haute to divert the car to Lexington. Instead of diverting it, the agent at Terre Haute reconsigned it to the Butner Produce Company, at Lexington, Ky. The car arrived there on July twenty-fifth, at which time the defendant demanded from the consignee the sum of $817.33, express and icing charges. The consignee refused to pay that amount and accept the car. The cantaloupes were sold by the defendant for the sum of $206.61.

The plaintiff has recovered a judgment against the defendant for damages, on the ground that the defendant converted the car of cantaloupes. If the car had been diverted from Terre Haute to Lexington, the charges would have been between $200 and $300 less. If it had been diverted it would have taken the through rate; as it was reconsigned, it took the short rate from Horatio to Terre Haute and from Terre Haute to Lexington.

There is no dispute but what the plaintiff ordered the car diverted and that the local agent at Horatio telegraphed the agent at Terre Haute to divert it.

The defense is based upon the ground that the car could not be diverted under the tariff rates and rules approved by the Interstate Commerce Commission and in force at that time, and that any agreement to divert the car in violation of the rates and rules on file with said Commission was void and not binding upon the defendant. It is conceded that the rate charged for the shipment must be the rate on file. It is also conceded that such rate made the amount due at Lexington the amount demanded of the consignee.

Rule No. 26 of the official express classification issued by the defendant and filed .with the Interstate Commerce Commission governs the rate to be charged where there is a reeonsignment of a carload of express. It reads as follows:

“ 26. Reconsignments: Carloads. If the destination of a carload shipment is changed within 48 hours after the car reaches the original destination, and the contents of the car have not been disturbed or removed and the original destination is a directly intermediate point on a direct route between point of origin and final destination, charges will be assessed on the basis of the through rate from point of origin to final destination. If the original destination is not an intermediate point on the direct route from point of origin to final destination, the through charge must be assessed on the basis of the sum of the local rates to and from the original destination. Owner will be required to pay cost of telegraph and telephone messages ordering change of destination made under this rule.”

This rule provides for a reshipment after a car has reached its original destination, in this case Terre Haute. It is conceded that Terre Haute is not on the direct route from Horatio to Lexington. Rule No. 25 provides for the diversion of a car while in transit, and has no application to the shipment in question as here the car had reached its destination before the plaintiff requested the local agent to divert it.

Under the provisions of the Interstate Commerce Act the defendant was bound to collect the rate fixed by the tariffs and rules filed with the Interstate Commerce Commission. (8 U. S. Comp. Stat. §§ 8564, 8565, 8569; 24 U. S. Stat. at Large, 379, § 2; Id. 380, § 3; Id. 380, § 6, as amd. by 34 id. 586, § 2, and 36 id. 548, § 9.) The only legal rate was the one printed in the tariff and rules filed. That rate was fixed and unchangeable by any acts of the parties — it could not be deviated from. The plaintiff and the defendant were each charged with knowledge of it. The defendant could not estop itself from collecting such rate by any statement made by its local agent. It was beyond the power of the agent to bind the defendant to any rate other than that fixed by the tariffs and rules filed. That must necessarily be so, or the purpose of the statute could be easily avoided. (Atchison, etc., R. Co. v. Robinson, 233 U. S. 173; 58 L. ed. 901; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17; Porter v. Lehigh Valley R. R. Co., 194 App. Div. 139.) I do not understand the respondent to question these well-settled principles.

It is urged, however, that the shipper would not have ordered the car forwarded from Terre Haute to Lexington if he had not relied upon the statement of the defendant’s agent that it would be 'forwarded at the through rate; also that the.plaintiff’s instructions were to divert the car and not to reconsign it, and that when the agent violated the instructions and reconsigned it he acted, not only without instructions to do so, but directly opposite to the instructions which the plaintiff gave; and that such act and the demand of the consignee at Lexington for the payment of the short rate which was charged in violation of the agreement constituted a conversion and made the defendant liable for the value of the cantaloupes.

It is clearly settled that if the local agent quotes a certain rate and the shipper relies upon such rate, and sells the' goods on that basis, nevertheless, the carrier must collect the tariff rate, although higher, and the shipper has no redress. The shipper is conclusively presumed to know the rate. (Louisville & Nashville R. R. v. Maxwell, 237 U. S. 94; 59 L. ed. 853; Texas & Pacific Railway v. Mugg, 202 U. S. 242 ; 50 L. ed. 1011.) If the local agent had quoted a rate below the tariff rate for the shipment from Terre Haute to Lexington, clearly the defendant would have been entitled to collect the tariff rate. The same rule should apply where the agent, as in this case, agreed to divert the shipment, thereby securing a through rate, where the rules on file only permitted a reconsignment at a short rate. The same reason applies to one case as to the other.

When the agent undertook to divert the shipment he attempted to secure for the shipper an unlawful rate, a rate below the rate fixed by the tariffs and rules on file. It makes no difference that it was called a diverted shipment instead of a reconsignment; the result attempted to be accomplished, the giving of a lower rate, was the same.

The amount demanded of the consignee at Lexington was the proper amount under the tariffs filed. There was no conversion of the property by the defendant. The judgment for the plaintiff was erroneously granted and should be reversed, the complaint dismissed and judgment entered for the defendant upon its counterclaim for $817.33, less $206.61, the amount received by the defendant on the sale of the cantaloupes, with interest from July 25, 1919, with costs in the City Court of Lockport. The judgment of the County Court should be reversed, with costs to the appellant in that court and with costs in this court.

All concur, except Davis, J., who dissents in an opinion.