CHICAGO, ROCK ISLAND, & PAC. RY. v. DODSON

CHICAGO, ROCK ISLAND, & PAC. RY. v. DODSON
1908 OK 264
94 P. 673
Case Number:
Decided: 02/04/1908
Supreme Court of Oklahoma

CHICAGO, R. I. & P. RY. CO.
v.
DODSON et al.

SYLLABUS

¶0 Where the terms "compressed cotton, any quantity, and uncompressed cotton, any quantity," are used in a tariff sheet, without further amplifying words, the prior and contemporaneous practical construction placed on said terms by the railroad company, through its agent in charge, as to baled cotton delivered to the railroad company and thereafter compressed and then shipped through to its place of consignment, when there was no other promulgated rate between the designated points concerning cotton shipments, is competent for the consideration of the jury in determining the meaning of the contract.

Error from Southern Judicial District of the Indian Territory; J. T. Dickerson, Judge.

Action by J. M. Dodson and R. J. Williams against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

On the 5th day of March, 1904, Dodson and Williams commenced their action in the United States Court for the Southern District of the Indian Territory at Ryan, against the Chicago, Rock Island & Pacific Railway Company. Their complaint alleged that the plaintiffs were a partnership, and the defendant was a corporation, and that on the 8th day of February, 1903, plaintiffs delivered to the defendant, as a common carrier, at the town of El Reno, in the territory of Oklahoma, 200 bales of cotton to be carried by the defendant to the city of Denver, which said cotton weighed in the aggregate 105,761 pounds, and that on the 23d day of January, 1903, they delivered to the defendant 50 bales of cotton, weighing in the aggregate 26,098 pounds at the city of El Reno; that on the 9th day of February, 1903, they delivered to the defendant 105,482 pounds at the city of Chickasha to be carried to Denver; that the cotton was sent shipper's order, with instructions to notify their representatives, the Overland Cotton Company, at Denver; that the defendant, through its agent, contracted with plaintiffs to carry the cotton from El Reno and Chickasha to Denver at the rate of 65 cents per hundred pounds, which plaintiffs allege was the regular tariff rate, and that the defendant, after the cotton reached its destination, unlawfully and wrongfully compelled the plaintiffs to pay 75 cents per hundred pounds, and that plaintiffs were compelled to pay an excess of $237.26 over the lawful rate; that defendant, though often requested, had failed and refused, and still failed and refused, to pay the same. Plaintiffs ask judgment for $237.26.

Defendant answered, first, with a general denial, and, second, admitting that it was a corporation, and operated a railway between the points named by plaintiffs in the Indian Territory and the city of Denver, and that at or about the time and places stated in the complaint it had received from plaintiffs for shipment to Denver certain uncompressed cotton. Defendant denied that it contracted with plaintiffs to carry the cotton, or any portion, from El Reno or Chickasha to Denver at the rate of 65 cents per hundred pounds; denied that 65 cents per hundred pounds was the tariff rate between El Reno and Chickasha, or either of said points and Denver, and averred that 75 cents per hundred pounds was the tariff rate duly established and published by defendant for the carriage of uncompressed cotton or cotton compressed in transit by defendant from either El Reno or Chickasha to Denver, and that the defendant could not lawfully make an agreement to transport the cotton, or any portion thereof, at any other different rate than 75 cents per hundred pounds. "The cause came to trial on the 11th day of May, 1905, and a verdict was returned, and judgment was rendered against the railroad company for $237.26. A motion for a new trial, in accordance with the rules of the court, was duly filed, and on hearing was overruled, and the defendant, plaintiff in error here, by due proceedings secured the issuance and service of a writ of error and a citation." Dodson and Williams, defendants in error, during the cotton season of 1902 applied to the local agent at Chickasha, Ind. T., R. Stevens, for a rate on cotton from Chickasha, Ind. T., and El Reno, Okl. T., to Denver, Colo. He, on behalf of railway, agreed to ship it for 65 cents per hundred pounds, unless it was to be shipped flat; that is, unless the shippers demanded that it should be shipped through without compressing, in which event the rate was 75 cents per hundred pounds. Acting on this rate they shipped about 1,700 or 1,800 bales, all of which was compressed by the railway company, and shipped as compressed cotton. All this cotton was shipped through on the 65-cent rate except 450 bales, and on these the railway company compelled the agents of defendant in error, the Overland Cotton Mill, at Denver, Colo., to pay an additional 10 cents per hundred pounds before they would deliver the cotton. The part of the printed tariff of plaintiff in error applicable to this transaction, and introduced in evidence, appears hereafter in the excerpt from testimony of R. Stevens.

R. Stevens, among other things, testified as follows:

"Q. What position do you hold there? A. Local agent, Rock Island. Q. How long have you been agent for the Rock Island there? A. Three years the 21st of this month, at Chickasha. Q. Mr. Stevens, are you acquainted with Mr. Williams here, a member of the firm of Dodson and Williams? A. Yes, sir. Q. Did he apply to you for a rate on cotton to Denver during the year 1902? A. Yes, sir. Q. Did you give him that rate? A. Of sixty-five cents? Q. Yes. A. Yes, sir; I did. Q. What was the rate of the railroad company? A. That was my construction of it. Q. Was that rate ever changed during the time that this cotton was shipped? A. Not to my knowledge; no, sir. Q. Do you know, Mr. Stevens, how much of this cotton was shipped there on that rate? A. I do not; I find in looking over our records that we have no correction of any of the cotton that went to Denver. It all went through on the sixty-five cent rate. Q. Under that sixty-five cent rate, who paid for the compressing? A. The railroad company paid it out of the earnings."

Cross-examination:

"Q. Mr. Stevens, what tariff was in effect in November and December, 1902, and January and February, 1903? A. 1818 E, I believe was the tariff. Q. Did you show the printed tariff to Mr. Williams in 1902? A. I showed this tariff to him. Q. Is that what you showed him? A. A copy of this. Q. Did you show him the printed matter on the thirteenth page, marked, ‘Items 5 and 6'? A. I did, and thoroughly discussed it; the clerks in my office, and Mr. Williams and myself."

Said items are in words and figures as follows:

Special Commodity Rates.

Item No.

from

to

Commoditycar loads

Rates in cts. per 100 lbs.

5

C. R. I. & P.Ry.

Denver, Colo.

Cotton

here in the

Pueblo, "

Uncompress-

Indian andOkl.

Colorado Springs,

ed any

Territory

Colo.

quantity

75

6

Do

Do

Cotton

compressed

"Q. The expression ‘flat shipments,' as used here a little bit ago, explain what it means? A. Flat shipments? Q. Yes. A. Cotton that is uncompressed; moves flat as it comes from the gin. I suppose there is a few of them that don't know what it is. Q. Do you call it a flat shipment where it is shipped either compressed or uncompressed at carrier's option? A. No; not unless the shipper specifies he wants it moved flat. Q. Where the shipper specifies he wants it moved without compressing? A. Yes, sir. Q. That is what you mean? A. Yes, sir; where the shipper specifies he wants it moved without going through the compress. Q. Did you ever handle any that way? A. Yes, sir. Q. Did you handle any to Denver? A. Yes, sir. Q. At what rate did you put it through? A. Seventy-five cents. Q. It went through without compressing? A. Yes."

Redirect examination:

"Q. Mr. Stevens, this cotton shipped by Dodson and Williams, was that compressed? A. It was. Q. If the rate is given in the tariff as sixty-five cents for compressed cotton, what does that mean? What does that include? A. Well, I take it that it means the cotton that is to be compressed in transit. Q. What I want is the regulations and custom; who pays the compressing charges? A. It is customary for the company to pay for the compressing. Q. I believe you said in answer to Mr. Blake's question, you stated where the rate was seventy-five cents for uncompressed cotton, that that was where the shipper demanded that the cotton be shipped through flat, without being compressed? A. Yes, sir."

The following are the specifications of errors: First. That the trial court erred in overruling the motion of the plaintiff in error for a new trial. Second. That the trial court erred in overruling the objection of counsel for plaintiff in error to the following question asked the witness R. J. Williams: "Was that the rate it gave?" meaning the rate given by the printed tariff. Third. That the court erred in overruling the objection of counsel for plaintiff in error to the following question asked of the witness R. Stevens: "Was the rate ever changed during the time that this cotton was shipped?" Fifth. That the court erred in overruling the objection of plaintiff in error to the following question asked the witness R. Stevens: "I will ask you when a rate is made by a railroad on compressed cotton, what does that mean?" Sixth. The court erred in overruling the objection of the plaintiff in error to the following question propounded to the witness R. Stevens: "If the rate is given in the tariff at sixty-five cents for compressed cotton, what does that mean; what does that include?" Seventh. The court erred in overruling the objection of the plaintiff in error to the following question asked the witness R. Stevens, to wit: "When a rate of that kind is made by the ordinary rule of the railroad company, who pays the compressing?" Eighth. That the court erred in overruling and denying the motion made by counsel for plaintiff in error before the argument and before the charge to the jury, to find a verdict for the defendant on the following grounds: (1) That the evidence entirely failed to show that the plaintiff had paid any sum in excess of the rate provided by the defendant's printed tariff; (2) that the evidence entirely failed to show that the plaintiffs had paid any sum of money under protest; (3) that the evidence entirely failed to show that any contract covering the rate of shipment involved in the action had been made between the plaintiff and defendant. Ninth. That the said court erred in refusing to give to the jury the following instruction requested by the plaintiff in error: "You are instructed that the law requires that any rule or regulation which would in any way change, affect, or determine any part of the aggregate of rates and charges shall be stated in the printed tariff, and makes it lawful." Tenth. That the said court erred in refusing to give to the jury the following instruction requested by the plaintiff in error: "You are instructed that the language used in the printed tariff shown to have been in force at the time is plain and unambiguous, and there is no allegation in the pleadings that the words used have a technical or unusual meaning, and under which an issue of ambiguity can be tried, and you must disregard all testimony introduced to or tending to show a construction placed on the language of the tariff other than or different from the plain import of the words used." Eleventh. That the said court erred in giving the following instruction during the course of the charge to the jury: "Therefore, if you should find in this case that the rate of sixty-five cents per hundred was the regular tariff rate for compressed cotton, and you should find that the railway company entered into an agreement to deliver this cotton at its destination at a less rate than the regular schedule rate given to the public for like cotton shipments between the same points, then I instruct you that the said rates would be unlawful, and the plaintiff could not recover." Twelfth. That the said court erred in giving the following instruction during the course of the charge to the jury: "If you should find that the regular tariff rate was sixty-five cents per hundred for compressed cotton, and that the cotton in question was delivered to defendant by the plaintiff uncompressed, and that the defendant, upon its own motion and for its own benefit, compressed said cotton, and such had been its custom with the public and with the plaintiff, if you should find further that in this particular cotton in question they charged the sum of seventy-five cents per hundred, then I instruct you that your verdict should be for the plaintiff for the amount proven to have been paid in excess of sixty-five cents per hundred.

M. A. Low, Blake, Blake & Low, and Gilbert & Bond, for plaintiff in error.

Potter, Bowman & Potter, for defendants in error.

WILLIAMS, C. J.

¶1 The question involved in this case is the construction of the tariff sheet of the defendant in the court below, as to rates for "cotton uncompressed, any quantity," and for "cotton compressed, any quantity," the former being 75 cents and the latter 65 cents per hundred pounds, between the points named. In the case of the District of Columbia v. Gallaher, 124 U.S. 505, 8 Sup. Ct. 585, 31 L. Ed. 526, Mr. Justice Matthews, speaking for the Supreme Court of the United States, said: "We think that the practical construction which the parties put upon the terms of their own contract, and according to which the work was done, must prevail over the literal meaning of the contract. ***" "In cases where the language used by the parties to the contract is indefinite or ambiguous, and hence of doubtful construction, the practical interpretation of the parties themselves is entitled to great, if not controlling, influence. The interest of each generally leads him to a construction more favorable to himself; and when the difference has become serious and beyond amicable adjustment, it can be settled only by the arbitration of the law. But in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the courts as the true one." Topliff v. Topliff, 122 U.S. 121, 7 Sup. Ct. 1057, 30 L. Ed. 1114; Chicago v. Sheldon, 76 U.S. 50, 19 L. Ed. 594. See, also, Cavazos v. Trevino, 6 Wall. (U. S.) 775, 18 L. Ed. 815; Chicago Great Western Ry. Co. v. Northern Pacific Ry. Co., 101 Fed. 795, 42 C. C. A. 25; Gould v. Boston Excelsior Co., 91 Me. 214, 39 Atl. 554, 64 Am. St. Rep. 221.

¶2 In the case of Greason v. St. Louis, Iron Mountain & Southern Ry. Co., 112 Mo. App. 116, 86 S.W. 725, which was an action to recover for an overcharge on freight, it is said: "No decision has been cited that ‘lumber' means hewn ties. If the word ‘lumber' has any peculiar meaning among dealers in it or in transportation circles, which would embrace or exclude hewn ties, no evidence of the fact was offered. The meaning to be applied to the word in the letter in question is its ordinary meaning in vernacular speech, unless the previous dealings between the plaintiff and the defendant, or the circumstances under which the letter was written, or the light thrown on the intention of the letter by the other facts in evidence, the tariff sheet and the testimony of the freight agent, compel a different significance."

¶3 It appears that the baled cotton delivered by the plaintiffs to defendant was by or for said railway company compressed, and thereafter shipped by said defendant to its place of consignment, and that there are no other tariff rates applicable to such shipment other than the rate referred to in this record. From the terms "cotton uncompressed, any quantity," and "cotton compressed, any quantity," could you determine from the literal meaning of these terms whether the cotton is to be compressed before or after its delivery to the railroad company, or who was to have it compressed? And, further, when we find the able attorneys for the railway company contending for one construction and the said company, through its agent in charge of such matters, in the course of its business, placing a different one thereon, would not these circumstances indicate that there is certainly enough ambiguity to create what appears to be an honest difference of opinion? Hence, the necessity of parol proof as to the prior and contemporaneous practical construction placed thereon in its dealings with the public by said defendant company. We see no reason why words and phrases used in a tariff sheet should not be subject to the same rules of construction as when used in contracts between individuals. Certainly, the question of good faith, and the prior, contemporaneous, and subsequent conduct of the parties to the contract as to the subject-matter, cannot be dispensed with in reaching a correct conclusion, where there is sufficient ambiguity that reasonable and honest men may differ as to the construction thereof.

¶4 The regulation by law as to the performance of duties pertaining to the public by a railway company and of charges therefor is to the end that the public may not only have proper service for a reasonable charge, but also designed that every shipper should have equal rights. There is no appearance in this transaction of any device to evade such regulation. This is a salutary construction, for the shipper no doubt made contracts and shipments in good faith, relying on the contract made with the agent, which was in accordance with the uniform custom and usages of defendant's business with the public. There is no merit in any of the contentions of error made by plaintiff.

Let the judgment of the court below be affirmed. All the Justices concur