Vanderbilt v. Planters' Oil Mill & Gin Co.

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment for the defendant in an action at law rendered pursuant to a directed verdict. The suit was begun by the Southern Cotton Oil Company which afterwards went into the hands of receivers who were then substituted for the Southern Cotton Oil Company as plaintiffs in the case. The facts disclosed by the evidence necessary for an understanding of the questions decided on this appeal, are, in substance, as follows: The Southern Cotton Oil Company is domiciled and is engaged in the cotton oil business in the state of Louisiana, and the Planters ’ Oil Mill & Gin Company is domiciled and is engaged in the cotton oil business in Mississippi, having a mill at Kosciusko and another at Crenshaw. The Southern Cotton Oil Company owns a number of tank cars for the shipment of oil, three of which were forwarded to the Planters’ Oil Mill & Gin Company with the consent of the Southern Cotton Oil Company by the Valley Refining Company, a corporation, also domiciled and doing business in Louisiana for the purpose of being loaded with oil by the Planters ’ Oil Mill & Gin Company which the Valley Refining Company had purchased from it and shipped to such destination and consignee as *436 the Valley Refining Company should direct. These cars were to be returned when loaded by the consignees thereof to the Southern Cotton Oil Company. Two of these cars were delivered to the Planters ’ Oil Mill & Gin Company at Crenshaw and the other at Kosciusko. All of them were loaded by this company and remained thereafter for some time on the railroad track at Crenshaw and at Kosciusko, awaiting the receipt by the railroad company of shipping directions which the Planters’ Oil Mill & Gin Company could not give until furnished therewith by the Valley Refining Company. This company finally declined to direct the destination and consignee to which the oil should be shipped, and the Planters’ Oil Mill & Gin Company then shipped the cars out themselves, and sold the oil for the account of the Valley Refining Company. When the cars were unloaded by the consignees, the railroad company returned them to the Planters ’ Oil Mill & Gin Company at its request, delivering two cars to it at Crenshaw and the other at Kosciusko. Afterwards the Southern Cotton Oil Company requested the Planters ’ Oil Mill & Gin Company to forward the cars to it, which request was denied. The ground on which this request was denied is that demurrage to the extent of two hundred seventy dollars had been incurred and was due the railroad company because of the time the'se cars remained on the railroad tracks awaiting the receipt by the railroad company of shipping orders therefor. The railroad company did not assert any lien on the cars for this demurrage, but rendered a bill therefor to the Planters’ Oil Mill & Gin Company, the exact amount of which is not clear. The greater part, if not all, of the demurrage claimed by the railroad company on the two cars at Crenshaw was paid by the Planters’ Oil Mill & Gin Company, but that claimed by the railroad company to be due on the car at Kosciusko has not been paid, though the amount thereof and the right of the railroad company thereto is not disputed by the *437 Planters’ Oil Mill & Gin Company. When called on for the cars by the Southern Cotton Oil Company, the Planters’ Oil Mill & Gin Company declined to give them up until it should he paid the amount of demurrage which it owed or had paid the railroad company thereon. The Southern Cotton Oil Company denied any liability for this demurrage or any right in the Planters’ Oil Mill & Gin Company to hold the cars therefor. After considerable negotiation relative thereto, the Southern Cotton Oil Company paid the Planters’ Oil Mill & Gin Company two hundred seventy dollars, the amount of the demurrage which it claimed had accrued on the cars, under an agreement that by so doing the Southern Cotton Oil Company waived no rights it had in the matter, the money simply to take the place of the cars, and the Southern Cotton Oil Company to have the same right to recover the money as it theretofore had to recover possession of the cars. No rule of the Interstate Commerce Commission, or of the State Railroad Commission, or of any association dealing with the subject of demurrage, was introduced in evidence, except paragraph 4 of rule 1, of the National Car Demurrage Rules, which rules, according to the evidence of the defendant, were in force when the demur-rage hereinbefore referred to was incurred, if it was in fact incurred. What organization inaugurated these rules and why they apply here does not appear. The relevant portion of paragraph 4, rule 1, is as follows: ££ Private cars while held under constructive placement for delivery upon the tracks of their owners are subject to demurrage-charges after expiration of forty-eight hours’ free time.” This rule, it will be observed, does not fix the amount to bo charged as demurrage nor how the collection thereof shall he enforced.- This suit was instituted by the Southern Cotton Oil Company to recover the two hundred seventy dollars paid by it to the Planters ’ Oil Mill & Gin Company, rent *438 for the cars for the time they were held hy that company after they were unloaded, and for what is styled in the declaration as punitive damages. At the close of the evidence, the court directed the jury to return a verdict for the defendant, and the receivers for the Southern Cotton Oil Company have brought the case to this court. The ground on which the appellee seeks to maintain the judgment of the court below is that the railroad company had the right to charge demurrage on these cars and had a lien thereon therefor, which lien passed to the Planters’ Oil Mill & Gin Company, when it received the cars back from the railroad company because of its liability to pay the railroad company demurrage due on the cars. A railroad company has the right to impose a reasonable charge, called demurrage, for the detention of cars beyond a reasonable time for the loading or unloading thereof, and it has a lien therefor on the goods transported in such cars while it retains the dominion and control thereof. Section 2293, Code of 1906 (Hemingway’s Code, section 4682); Railroad Co. v. George, 82 Miss. 710, 35 So. 193, 4 R. C. L. 871. This lien is personal to the carrier, and cannot be sold or assigned, and is lost if the carrier surrenders possession of the property on which the lien is claimed, 4 R. C. L. 870 et seq.; Shingleur Johnson & Co. v. Canton Cotton Warehouse Co., 78 Miss. 875, 29 So. 770, 84 Am. St. Rep. 655. This case deals with the lien of a warehouseman, but a lien for demurrage is similar in character, and in this connection is governed by the same rules. Railroad Go. v. George, supra. Privately owned cars are subject to demurrage for any unreasonable time they remain on the railroad track through the fault of the shipper or consignee thereof (10 C. J. 465), and we will assume for the purpose of this argument that a lien therefor covers such cars. As between the shipper and the consignee, the one liable for the payment of demurrage is the one in fault, and, since *439 the delay in the forwarding of the cars here in question was caused by the failure of the Planters’ Oil Mill & Gin Company to furnish the railroad company with shipping directions, liability for the demurrage resulting therefrom rests primarily on it, and the railroad company had the right to look to it for the payment thereof. Whether the railroad company had the right to hold the Valley Refining Company also liable therefor as an undisclosed principal of the Planters’ Oil Mill & Gin Company is not here material. Prom the foregoing views it necessarily follows: (1) When the railroad company delivered possession, of the cars to the Planters ’ Oil Mill & Gin Company, any lien it may have had thereon for demurrage was lost, and did not pass to the latter company; and, (2) when the Planters’ Oil Mill & Gin Company paid or pays this demurrage, it paid or will pay its own debt, or that of its principal, the. Valley Refining Company, consequently any lien which its creditor had for the payment thereof was necessarily destroyed when the debt was paid. This demurrage was incurred through no fault of the Southern Cotton Oil Company but solely through the fault of the Planters’ Oil Mill & Gin Company or its principal, the Valley Refining Company. Consequently it necessarily follows that neither of them can succeed to the lien of the railroad company thereby created by paying the demurrage. Reversed and remanded.