CLAIM FOR EXCESS FARE NOT ENFORCEABLE WHERE DUE TO MISROUTING.

Court of Appeals for Franklin County.

#### Columbus Tent & Awning Co. v. Cleveland, C. C. & St. L. Ry.

Decided, March 27, 1919.

*Railways*— Additional *Fare for a Party Not Collectable*— Where *Full Fare was Paid*— But *There was a Violation of Traffic Rules Due to Misrouting.*

A railway company, whose ticket agent sold at full regular tariff rates two tickets for two parties of sixteen and nineteen men respectively, and agreed to furnish a special baggage car free, can not recover further compensation in excess of the service actually rendered for the transportation of one of such parties because of a transportation rule that a special baggage can be furnished free, only for a party of not less than twenty-five' adults, holding tickets at regular tariff rates, where the issuing of the tickets and the division of the party was determined by the ticket agent and no misquotation of fare rates was made.

*Thomas M. Sherman,*for plaintiff in error.

*Wilson & Hector,*for defendant in error.

Ferneding, J.

In the municipal court in the city of Columbus an action was brought by the Cleveland, C. C. & St. L. Ry. against the Columbus Tent & Awning Co. to recover the sum of $15.75 representing the tariff rate for three passenger tickets from Columbus, Ohio, to Erie, Pennsylvania. The municipal court rendered judgment for the defendant.

Upon petition in error to .the court of common pleas this judgment was reversed and a final judgment was rendered in favor of the railway company for the amount of the claim. The case is now brought to this court upon petition in error.

*146The facts upon which the claim is made are substantially agreed upon and are as follows:

On or about September 11, 1916, the Columbus Tent & Awning Co. desired to transport thirty-five men from Columbus, Ohio, to Erie, Pennsylvania, and to obtain for their use from the railway company free of charge, a special baggage car for the transportation of the baggage. The tent and awning company wanted to ship the men in two parties of sixteen and nineteen respectively, provided it could be done without a violation of the rules of the railway company so as to secure said special baggage car free of charge. At the time of the purchasing of the tickets the manager of the tent and awning company stated that while he would prefer to send sixteen on one ticket and nineteen on another ticket this preference would be subordinated to the rules of the company and he would so divide the number as to comply in all particulars with the requirements of the 'railway company, insuring a special baggage car free of charge and left to the agent of the railway company the issuance of the tickets for the party of thirty-five in compliance with the regulations. The agent of the railway company before issuing the tickets in the ratio set forth consulted with the company’s general officers at Cincinnati as to the company’s requirements in the premises with the result that he assured the manager of the tent and awning company that the parties represented by the tickets would be entitled to transportation and the use of a special baggage car without cost or additional charge and could be divided into parties of sixteen and nineteen. These negotiations resulted in the purchase by the plaintiff in error of two tickets, one calling for sixteen passengers and the other for nineteen passengers with a special baggage car to transport the baggage. The sixteen men were transported on September 11; the remaining nineteen on September 17. The fare paid for each passenger was $5.25, which was the regular tariff rate. The record is not absolutely clear whether the special baggage car was furnished at the time of the transportation of the party of sixteen or of the nineteen.

*147■ The recognized rule of the railway company, as embodied in the published tariff schedule, is to the effect that a special baggage car will be furnished free in connection with the transportation of a party of not less than twenty-five adults holding tickets at the regular tariff rate, provided the aggregate amount of such fares is not less than $25.00. The tariff schedule also provides that where it is found not to be convehient to transport the baggage car on the same train as the passengers the arrangements may be made for not to exceed three employes to accompany the baggage car, and a separate ticket may be.issued therefor at the same per capita fare as charged the other members of the party.

The railway company now contends that it was incumbent upon the tent and awning company to purchase at least twenty-two adult tickets in one party in order to obtain the concession of a free baggage car, and that having obtained the use of a free baggage car on a transportation of only nineteen adults in one party, the railway company was and is entitled to charge the tent and awning company for an additional three passenger tickets which would represent a total of twenty-five, less the three permitted by the rules of the company to travel on another train. In support of this contention counsel for the railway company rely largely on two decisions of the Supreme Court of the United States, to-wit: *Texas & Pacific Ry.*v. *Mugg,*202 U. S., 242; *Louisville & N. Ry.*v. *Maxwell,*237 U. S., 94. In the Mugg ease there was an undercharge for services actually rendered and we do not think that applies to this case.

Preliminary to a eonsideraliqn of the Maxwell case, let it be said that the Supreme Court of the United States has, according to its own dictum in said opinion, announced the establishment of a very vigorous rule in order to uphold the policy of the Interstate Commerce Act so as to prevent discrimination between railway companies in the transportation of passengers and freight.

Not infrequently has it been held that a shipper is bound to pay the published tariff rate for a given shipment notwith*148standing that such shipper may have been ignorant of such rate and relied upon the agent of the railway company who inadvertently and unintentionally gave such shipper a lower rate.

In the Maxwell case, supra, the agent of the railway company gave Maxwell the same rate over several lines. Maxwell chose an indirect route. The agent informed Maxwell that the fare upon either route was the same. Later it was discovered that the published tariff rate for the transportation previously secured by Maxwell exceeded in amount that charged by the agent of the railway company to Maxwell at the initial point, and Maxwell was required to pay the difference. It is important to observe at this point that Maxwell actually secured a service at less cost for which the higher rate was fixed by the published tariff schedule. In other words, Maxwell secured certain transportation at a cost less than authorized by the interstate commerce act.

Mr. Justice Hughes, in speaking for the court, said:

> “Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by.Congress in the regulation of interstate commerce in order to prevent unjust discrimination.”

It seems clear that there is a marked distinction between the Maxwell case and the case at bar. In the former, Maxwell was merely required to pay for the service actually obtained and at the regular tariff rate. In the ease at bar the railway company is asking the tent and awning company to pay for three passenger tickets in excess of the service actually furnished. The tent and awning company paid not only for tWenty-two adult fares, but, as a matter of fact, for thirty-five adult passengers actually transported.

We are unable to comprehend, even under a most rigid construction of the interstate commerce act as defined in the opinion of Mr. Justice Hughes, how the railway company could legally maintain an action for the recovery of the price of three *149additional passenger tickets when no such passenger service had been furnished.

If the tent and awning company had secured a baggage service to which they were not entitled, the railway company’s only remedy would be to recover for such excess baggage service.

We are of the opinion that the tent and awning company did not obtain any service which they were not entitled to under the record in this case. There is no element of doubt that if the tickets had been properly issued and the parties to be transported properly divided as to numbers, no claim would have been made of an undercharge. The issuing of the tickets and the division of the party as to numbers was left to the agent of the railway company. The controversy as to the charges in the case at bar arises not out of any misquotation of rate, but solely because of error of the agent in routing the party as to number. This feature finds some support by Mr. Justice Hughes in the following comment:

> “A misstatement or misquotation of the rate over a given route is one thing, misrouting is a different matter. We do not think that it can be said that there is a misroutting, in any proper sense, when the route given by the company is that requested by the shipper or passenger. ’ ’

The turning point in the Maxwell case was that the passenger requested and obtained particular service, for which he was required to pay the full tariff rate.

In the case here under discussion we think the shipper paid the full tariff rate for the service he actually requested; whatever error was made was due to the mistake of the agent of the railway company in issuing the tickets, and not by the tent and awning company in accepting the transportation, for which it paid the full tariff rate.

The rule announced in the Maxwell ease was stated to be a harsh one. Of course the infringement of a settled and fixed policy, while beneficial and wise in a general application, may, in the ease of some individual operate unfairly, yet under all *150the facts and circumstances of the present case we think it is not one requiring such general policy of the act to be invoked in the case at bar.

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

Allread and Kunkle, JJ., concur.