
    CARRIERS.
    [Montgomery (2nd) Circuit Court,
    December 30, 1913.]
    Allread, Ferneding and Kunkle, JJ.
    Alvin J. Fink v. P., C., C. & St. L. Ry.
    1. Consignee Accepting Goods Shipped and Paying Freight Charges Assessed by Carrier without Notice of Correctness of Charges not Liable for Balance of Published Tariff.
    A consignee, not a party to the contract of carriage, nor the owner of the goods in transit, receiving such goods shipped in interstate commerce and paying the freight charged by the carrier thereon, who thereafter, relying upon the correctness of the freight charges, accepts the goods of the consignor and delivers the consideration without notice or knowledge of a higher rate or charge, is not liable for the balance of the true published tariff rate omitted through an error of the shipping clerk of the initial carrier.
    2. Consignee not Bound by Doctrine that Shipper is Charged with Notice of True Tariff Freight Rate
    The doctrine that a shipper is charged with notice of the true tariff freight rate, no matter how obscure or complex, does not apply to a mere consignee whose interest in the goods shipped and whose title thereto vests after delivery by the carrier.
    [Syllabus by the court.]
    Error.
   ALLREAD, J.

This action originated before a justice of the peace. The railway company sought recovery of a balance of $15 alleged to be due it and its connecting carriers for the transportation of certain merchandise. The original bill of particulars based the claim upon contract. The amended bill rested upon the conveyance and delivery of the merchandise to Fink upon his request.

There was a verdict and judgment in the magistrate’s court against the railway company. This judgment was reversed in the court of common, pleas, where a final judgment was rendered for the railway company upon its claim.

The cause is brought to this court upon petition in error by Fink, seeking a reversal of the judgment of the- court of common pleas and an affirmance of that of the justice of the peace.

It is contended on behalf of the plaintiff in error that the court of common pleas had no jurisdiction to reverse the judgment of the magistrate, because the motion for a new trial in the magistrate’s court was not based upon the grounds stated in See. 10352 G. C.

We think it clear that the court of common pleas had no jurisdiction to grant a new trial upon the weight of the evidence. Derby v. Heath, 59 Ohio St. 54 [51 N. E. Rep. 547].

Under the broad language of the syllabus and opinion of the case cited, there is some plausibility to the contention that the verdict and judgment in the magistrate’s court is final and not subject to a review upon any ground. But we have reached the conclusion that whether there was any evidence tending to support the defense in the magistrate’s court was a question of law. We rest this conclusion upon the decision in Kaufman v. Broughton, 31 Ohio St. 424, holding that whether there is any evidence tending to support the plaintiff’s claim is a question of law, and it seems to us that the same principle should be applied to a case where the evidence does not tend to establish a defense. This question is raised in the record by request to the magistrate to instruct the jury to render a verdict in favor of the plaintiff. While a magistrate is not ordinarily required to instruct the jury, yet the effect of this request was to test the sufficiency of the evidence to support the defense.

The only question, therefore, capable of review by the court of common pleas was whether the evidence tended to support the defense in the magistrate’s court.

The judgment of reversal in the common pleas court can only be sustained in case of all the evidence, giving it its most favorable construction in favor of the defendant in the magistrate’s court, tended to support the railway company’s claim.

The evidence in the bill of exceptions tends to show that in August, 1910, a shipper whose full name does not appear delivered a package marked “Indian curios” to the initial carrier at Los Angeles, California, billed to Alvin J. Fink, Dlayton, Ohio, and that in due course of shipment the same was delivered to Fink upon his payment of the sum of $15, being the amount charged upon the bills and receipts tendered and exhibited to Fink. The testimony of Fink tends to show that there was no agreement between him and the consignor and that he (Fink) should pay the freight. He further testifies that the goods were shipped to him for examination and under an arrangement that if upon examination the same proved satisfactory they were to be taken by Fink'in exchange for certain gold coins which had previously been shipped by Fink to Los Angeles, California, where they ‘were in custody of the postmaster and subject to Fink’s order. Fink testifies that he paid the freight charges of $15 to obtain possession of the goods, and that after examination and without any knowledge or notice that any other or additional freight charges were due he released the gold coins and the same as well as the most part of the curios are now scattered and their whereabouts unknown. The evidence shows that some considerable time after this transaction was entirely closed, the railway company discovered that the true tariff rate of shipment was $30 instead of $15, and this claim was thereupon asserted against Fink as consignee.

Was Fink as consignee, therefore, liable under the evidence as a conclusion of law? This question is to be determined under the common law as affected and controlled by the eomr maree acts of congress. Under the common law the shipper of goods was liable to carriers for the reasonable rate of transportation and this rate was capable of being fixed by contract. The consignor is generally considered the shipper as between him and the carrier, but the consignee was also held to be liable upon the contract of shipment for the freight charges where such consignee was the owner of the goods or requested or directed the shipment. While there is some conflict of authority, we think under the common law the consignee’s liability for the freight charges under the contract of shipment is confined to cases where the consignee was in some way a party to the contract of shipment or was the owner of the goods transported. There is, however, a liability of the consignee, based upon the receipt of the g'oods upon which freight charges are due. His liability in this respect is entirely different from that of ship-pet. It rests upon the presumed intention or agreement of the parties at the time of delivery. Blanchard v. Page, 74 Mass. (8 Gray) 281; Cock v. Taylor, 13 East 339; Old Colony Ry. v. Wilder, 137 Mass. 536.

There are some English as well as American decisions based upon an express stipulation in the bill of lading to the effect that the consignee agrees to pay the freight but where, as in the case at bar, there is nothing upon the face of the bill of lading tending to impose any liability upon the consignee, except that implied from the collection of the freight charges marked upon the bill, the liability of the consignee depends upon the real circumstances of the case. Here Fink was not a party to the contract of shipment, was not the owner of the goods during transportation and his title vested and the consideration was delivered subsequent to his receipt of the goods. He paid the $15 charges, not by virtue of any agreement to do so, but because that amount was imposed as a lien upon the property and a condition of delivery. We think there are no circumstances in the case from which under the common law Fink would be held liable, for any amount in excess of the $15 charged and paid at the time the merchandise was delivered. It is contended, however, that the effect of the Interstate Commerce act was to make it imperative upon the railway company to collect from the consignee the full tariff rate, regardless of the mistake of the agents of the railway company and regardless of the consignee’s connection with the property or the shipment.

We have examined the following cases decided by the Supreme Court of the United States: Texas & P. Ry. v. Mugg, 202 U. S. 242 [26 Sup. Ct. Rep. 628; 50 L. Ed. 1011] ; Chicago & A. Ry. v. Kirby, 225 U. S. 155 [32 Sup. Ct. Rep. 648; 56 L. Ed. 1033] ; Illinois Cent. Ry. v. Elevator Co. 226 U. S. 441 [33 Sup. Ct. Rep. 176; 57 L. Ed. 290] ; Texas & P. Ry. v. Oil Co. 204 U. S. 426 [27 Sup. Ct. Rep. 350; 51 L. Ed. 523] ; New York N. H. & H. Ry. v. Commerce Commissioners, 200 U. S. 361 [26 Sup. Ct. Rep. 272; 50 L. Ed. 515].

All these cases were actions involving the shippers’ rights as against the carrier and, therefore, involved the contract of shipment and the liability of the parties thereto. In none of these cases was the liability of the consignee directly involved. His rights must, therefore, be determined by the common law as modified by the Interstate Commerce act.

Section 6 of the Interstate Commerce act provides:

“That every common carrier subject to the provisions of this act shall file with the commission created by this act, and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and points on the route of any other carrier, by railroad, by pipe line, or by water, when a through and joint rate have been established *■ * * ■ the schedules printed as aforesaid by any such common carrier shall plainly state * * * all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee.”

Section 6 further provides: portation of passengers or property for any service in connection therewith, between the points named in such tariffs than the rates, fares and charges which are specified in the tariff filed and in effect at the time.”

“Nor shall any carrier charge or demand or collect or receive á greater or less or different compensation for such trans-

The Interstate Commerce act was amended June 18, 1910, so as to make the carrier criminally liable for a misquotation, of rates.

The only direct reference to “consignee” in the Interstate act is found in Sec. 6, in connection with charges made and services rendered to the “passenger” or “shipper.” "We think this paragraph should be limited in respect to the consignee to one at whose instance the service was had and who becomes: liable under the contract of shipment for the freight charges. This paragraph was not intended to create a new liability, but: as a regulation of charges against persons at whose instance or for whose benefit the service was had.

The final reasoning brings us to a consideration of the paragraph of Sec. 6 prohibiting the carrier from charging, demanding or collecting “a greater or less or different compensation”' than the tariff rates. This prohibition is addressed specifically" to the carrier, but, under the broad principle of public policy underlying the Interstate Commerce act, is sufficient to charge' the shipper or other party originating the service who is bound to take notice of the tariff rate no matter how obscure or difficult.

It is urged that the same inexorable rule of public policy should be applied to the consignee no matter what his relation to the property is. This contention is founded upon the second syllabi of Texas & P. Ry. v. Mugg, supra, and also Louisville & N. Ry. v. Magnus Co. 32 O. C. C. 608 (13 N. S. 305).

In the Mugg ease the liability of the consignee was incidental, and the syllabus referred to relates to the rights of the company at the time of delivery, and should not in our opinion be generally applied to all persons who happen to deal with, railway companies in relation to the property.

In the Magnus case the mistake in the freight charge was discovered before the property was delivered, and the delivery was made under a general arrangement charging the amount ■of the freight against the shipper instead of collecting it before ■delivery. We think the syllabus in the latter case as well as ■the opinion should be limited by the facts of the case, and so also the syllabus in the Mugg case should be limited to cases where the freight charge and the delivery are concurrent. The rule of public policy, charging notice of the tariff rates against shippers, does not apply with equal reason to a mere consignee who receives and deals with the property upon the faith of the .railroad company’s charges stated in the bill of lading. Such consignee should not be charged like the original shipper with the duty of ascertaining the public tariff rates, nor is he chargeable with ascertaining the fact as to whether all or only a portion of the tariff rates are made chargeable against him. Undoubtedly if the shipment had been delivered under a bill of lading showing freight paid, it could not in reason and justice be claimed that the consignee was bound to ascertain the fact of prepayment. Public policy does not require that our remedial laws should be made an instrument of injustice or oppression.

Fink when he received the goods found charged thereon $15 "which he paid. We think he was not bound as a matter of law to go further than what appears upon his bill of lading and receipt in the investigation of the amount of charges, and having paid that, there is no further personal liability.

It, therefore, follows that the judgment of the court of common pleas should be reversed and that of the magistrate affirmed.

Ferneding and Kunkle, JJ., concur.  