American Railway Express Co. v. Peninsula Produce Exchange

Pabick, J., delivered the opinion of the Court. The Peninsula Produce Exchange, appellee, received an order for a carload of strawberries that it decided to forward to the purchaser in Bangor, Maine, from Snow Hill, Maryland. The established course of its trade required this interstate transportation to be made in refrigerator oars, which •were furnished by the American Railway Express Company, appellant, at the designated place of shipment, after having been iced at Berlin. The appellee, accordingly, gave to the appellant, on May 17th, 1923, a verbal and then a written request for an express refrigerator car, which was to be placed, iced for loading strawberries, at Snow Hill, not later than Friday afternoon of May 18th.

While it is true that, when the car was ordered, there was no express direction that it should be iced at Berlin, yet this was the usage which governed the transportation of berries in refrigerator cars from Snow Hill and, furthermore, the delivery of an uniced car at Snow Hill for the carriage of strawberries to Maine would have been a futile act, which was not intended by the parties 'and which would have been in violation of their clear, although implicit, understanding. Between nine and ten o’clock, on the morning of May 18th, the agent of the appellee inquired of the appellant whether the car would be provided as ordered, and there is testimony that the agent said to the appellant’s local representative that the appellee did not want to buy the strawberries, if the car would not be furnished at the specified time. Although it is flatly contradicted by the testimony produced by the appellant, the evidence on the part of the appellee is that the appellant’s agent made inquiry by telephone of his principal whether the refrigerator car would be ⁴⁶⁸ on hand at the time desired, and assured the appellee’s agent that the car would be placed at the time designated in the order, and that the appellee could safely go ahead in the buying of the strawberries to be loaded. At this time the appellee had not over a half dozen crates of strawberries at Snow Hill, and proceeded to buy and receive on consignment crates of strawberries, so that one hundred and twelve crates were ready for shipment on the afternoon of May 18th, when the refrigerator car had been promised.

The refrigerator car did not come, and about nine o’clock at night, the appellee’s servants carried the strawberries to the railway freight station at Snow Hill. They there packed the strawberries and shipped them at half past seven in the morning of May 19th in a box freight car, without icing, to New York, where they arrived at midnight, May 20th, and were sold at a loss. The request of the shipper to the agent of the carrier that the carrier would furnish it a refrigerator car at a certain time and place, and the promise of that agent to comply with such request, is a valid contract at common law. Clark v. Ulster etc. R. Co., 189 N. Y. 93 , reported and annotated in 12 Ann. Cas. 883, and 13 L. R. A.

(N. S.) 164. The case of Di Giorgio Co. v. Penna. R. Co., 104 Md. 693 , is not in conflict with this conclusion, as the proof in the case at bar of an express promise on the part of the carrier to* furnish the car desired at the specified time and place was lacking in that case. If it be assumed that the contract on this record was not in violation of the Interstate Commerce Act, a breach of the obligation imposed upon the carrier by its terms- would entitle the shipper to bring an action in either contract or in tort, at its election.

But if the choice of action is in case, for the tort, some clear act of negligence must be* shown on the part of the carrier beyond a mere breach of the teams of the'contract. The pleader brought the present case in tort, but the action was dependent upon the contract mentioned; and the rights and dirties of the parties are ascertained from and measui”e*d by the nature of the contract. Balto. & O. R. Co. v. Pumphrey, 59 Md. 390 ; Thompson v. Clemens, 96 ⁴⁶⁹ Md. 207, 209; Western Union Tel. Co. v. Lehman, 105 Md. 450 .

Tlie appellee tried liis ease upon the* theory that there had been a negligent failure of the appellant to furnish the refrigerator car in accordance with the stipulation of the special contract, and the proof on the part of the appellee was directed to the establishment of this default. The legal sufficiency of the proof to entitle the appellee to recover was challenged by appellant’s rejected first prayer, but, as, this prayer was not addressed to the pleadings, it raised for consideration whether there was a right of recovery upon the proof of a breach of duty imposed, (1) either by a special contract to furnish a refrigerator ear at a particular time1 and place, (2) or by its general obligation as a common carrier. 1. The proof offered by the appellee in the trial of the case tended to show that the appellant, through its. agent, had made a contract to furnish a particular shipper1 with a refrigerator ear at a prescribed time and plaice for the purpose of making an interstate shipment. If such an agreement were lawful, the express company would have’ been bound to a strict performance, of the terms of tlm contract, and would not- have been excused for a failure to furnish the ear on the day named at the place designated by proof of due diligence. 10 C. J., "Carriers," secs. 290, 294.

The instant case is, however, one where the contract assented by the appellee was in reference to an interstate shipment of goods by a public carrier, and the transportation service by the carrier must he rendered in conformity with its published tariffs, and not pursuant to stipulations of a special contract providing for a special service. The rates and schedules of the appellant did not contemplate, nor did ilioy provide for, an expedited interstate service through the furnishing to a particular shipper a refrigerator car at a designated point on a day certain. On the contrary, the' record before us establishes that such a preferential service was expressly prohibited. If it were allowed, the purpose of the Interstate Commerce Act, as amended, to compel the estab ⁴⁷⁰ lishment of reasonable rates and nomdiscriminatory service through the uniform application of relevant tariffs, would be defeated.

To guarantee that a special car would be furnished at a particular time and place, for the transportation of a common commodity, was to- create an advantage or preference which was not available to- all and which was not provided for in the published tariffs. Chicago etc. R. Co. v. Kirby, 225 U. S. 155, 164, 165 . Knowledge of the published tariffs and rules is imputed to the shipper, supra. So the shipper had either actual or imputed notice of the published tariff, and was, therefore, affected with knowledge not only that the carrier could not lawfully enter into the purporting contract, bemuse it was forbidden and declared illegal by the Interstate Commerce Act,' but also that the carrier’s agent at Snow Hill was expressly limited in his authority, so that he “must not guarantee to. provide refrigerator or other equipment,” infra.

Any representations of the agent at Snow Hill to the appellee beyond the known scope of his authority could not bind the appellant in a transaction with a shipper having that knowledge. 2 Mechem on Agency (2nd ed.), sec. 1727. In Davis, Agent, v. Cornwell, 264 U. S. 560 , the Supreme Court held that a contract by a common carrier to provide a shipper with ears for loading on a day certain cattle for transportation in interstate commerce was invalid, as it was not shown or contended that the published tariffs governing the proposed shipment provided in terms for such a contract. In the course of the opinion, Justice Brandéis stated:' “That the thing contracted for in this case was a service preliminary to the loading is not a difference of legal significance. The contract to supply cars for loading on a day named provides for a special advantage to the particular shipper, as much as a contract to expedite the oars when loaded.

It was not necessary to prove that a preference resulted in fact. The assirmption by the carrier of the additional* obligation was necessarily a preference. The objection is not only lack of authority in the station agent. The paramount requirement ⁴⁷¹ that tariff provisions be strictly adhered to, so. that shippers may receive equal treatment, presents an insuperable obstacle to recovery.” And see Davis, Agent, v. Henderson, 266 U. S. 92 .

It is a necessary result of these decisions of the Supreme Court of the United States that there can be no recovery by the appellee for any default of the appellant in failing to perforin a promise of the carrier, through its agent, to furnish under the attempted special contract the refrigerator car at a particular time and place. , ' 2. The inability of the appellee to recover for a breach of contract or of duty under the illegal special contract would not prevent a recovery for such a negligent failure of the express company to perform its duty as a common carrier as to be the proximate cause of an injury sustained by the appellee. And the remaining question is whether there was any proof legally sufficient for the jury to find that there was negligent delay in the furnishing of the refrigerator car for which the appellant was responsible. Apart from any obligations attempted to be assumed by a special contract, the common law duty of the1 express company was, speaking generally, to furnish to' the public reasonable and ordinary facilities for the transportation, in the order of their offer and without unreasonable delay, of such goods as might reasonably and usually be expected to. be tendered in the natural course of the business of carrying express matter.

At the time of the transaction now before the court, strawberries were second class matter for the purpose of interstate shipment by the -appellant, and, therefore, the common law duty of the carrier with respect to the carriage of the strawberries was modified by the Interstate- Commerce Law through its published tariffs, which fixed the duties and measured the liabilities of the carrier1 iu interstate commerce.' The transportation service- to be rendered was, accordingly, that of a common carrier under published tariffs. The tariff governing this particular transportation service were these rules: ⁴⁷² “Rule 16-J. Refrigeration — Carload Shipments of Perishable Commodities. — The Express Company has arranged for a limited number of refrigerator