St. Louis Southwestern Railway Company v. Spring River Stone Company/Opinion of the Court
A controversy between the railway company and defendant shipper concerning freight charges was adjusted by computing them upon the actual weight of the merchandise transported. Afterwards, claiming that the reckoning should have been upon the minimum capacity of cars used, the railway company sued for the difference between the two results. Defendant relied upon the settlement and also full payment; the trial court directed a verdict for it; this was approved upon appeal (169 Mo. App. 109, 154 S. W. 465); and the cause is here by writ of error.

Plaintiff in error operates a road extending northward from Fort Worth, Texas, which connects through an intermediate one with the St. Louis & San Francisco Railroad whose line reaches Carthage, Missouri, where defendant is engaged in quarrying, selling and shipping stone. Having been advised by plaintiff in error's commercial agent that the rate on stone in cars of 50,000 pounds capacity to Fort Worth was 27 1/2 cents per hundred, defendant contracted to deliver five carloads to a purchaser located there. The local agent of the initial carrier at Carthage was informed that such cars would be required for the proposed shipments, and in November and December, 1908, he was requested by telephone to supply them. Cars of that size were scarce, and for its own convenience the railroad company furnished five larger ones-60,000 to 88,000 pounds-in which the shipments were made, the weight in each instance being less than the marked minimum, but appropriate for a 50,000-pound car. When these arrived at Fort Worth, charges of 27 1/2 cents per hundred, marked capacity, were demanded. They were paid, and immediately thereafter the shipper presented a claim for the amount exacted above a reckoning based on actual weights. Careful investigation was promptly made, and in February, 1909, the excess was refunded. All parties acted with knowledge of the facts, in good faith, and without purpose to evade the law.

Upon the theory that it was bound to collect freight charges according to car capacity, and that the settlement was prohibited by regulations of the Interstate Commerce Commission, two years thereafter plaintiff in error commenced this action to recover what it had repaid.

At the trial the waybills were not introduced, their absence was not accounted for, and their contents do not appear. No carrier's order book was produced. The shipper received no bill of lading, but the railway company offered to introduce alleged copies of five signed by the Carthage agent. They were rejected because not properly identified, and no further effort was made to prove their contents. Five so-called shipping tickets were put in evidence. These requested the initial carrier to accept the freight, and upon them appears the following, signed by its agent: 'This shipment is tendered and received subject to the terms and conditions of the company's uniform bill of lading. All conditions herein to the contrary are canceled.'

The applicable duly filed tariff schedule specified freight rate on stone between Carthage and Fort Worth as 27 1/2 cents per hundred when loaded in 50,000-pound cars. It also provided that 'minimum weight will be the marked capacity of car on stone;' and item No. 81 was in these words: 'The following rule will be observed in assessing the freight charges for the minimum weights, according to capacity of car: 'When the carrier cannot furnish car of capacity ordered by shipper, and for his own convenience provides a car of greater capacity than the one ordered by the shipper, it may be used on the basis of the minimum carload weight fixed in tariff applied on size of car ordered by shipper, but in no case less than the actual weight. Capacity of car ordered, number of the order, and date of same to be shown in each instance on the bill of lading and the carrier's waybill.' In no case must shipment be billed at minimum weight of a car of less capacity than in service on initial line.'

The so-called shipping tickets may not be treated as bills of lading within the requirement; upon their face they refer to 'the company's uniform bill of lading,' and plaintiff in error undertook to introduce alleged copies of bills of that character. The facts concerning the waybills are undisclosed. It is not possible, therefore, to ascertain from the record the contents of any of the bills.

In effect the railway company now contends that, as the evidence fails affirmatively to show the notations required by rule 81, the law imposes an absolute obligation upon the shipper to pay charges estimated upon the marked capacity of cars utilized, notwithstanding the settlement and good faith of all parties. To this position we cannot give assent. In the circumstances the initial carrier was charged with the duty of making these notations; and for the purposes of this suit the shipper might assume compliance with that duty,-he was not required to establish actual performance. He only sought and received what was authorized by the tariff on file. Larger cars than he requested were supplied for the carrier's special accommodation, and the commands of the applicable rule addressed to the latter imposed the clerical task of recording information within its peculiar knowledge upon documents for whose preparation it was responsible.

Nothing herein is intended to modify conclusions announced in former opinions in respect of the obligation upon both carrier and shipper strictly to observe lawful tariffs. We determine only the narrow point adequate for disposition of this cause upon the particular facts revealed by an unsatisfactory record.

The judgment of the court below is affirmed. 

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