New Orleans & Northeastern Railroad v. George

Truly., J., delivered the opinion of the court. This suit involves the determination of the following quesr tions: First, are the rules for the collection of demurrage valid % and, second, if so, how are they to be enforced ? Car service associations are formed by mutual agreement among the railroad companies operating in a stated territory. They owe their existence to the growth of the business interests of the country, the enormous increase in the bulk of through freight handled daily, and the consequent extension of the many railroad systems handling the same. With every increase in the volume of the freight brought into a section from distant markets, hauled, without unloading, over the tracks of many connecting systems of the same gauge, it became more difficult for each carrier to keep track of its own cars. As the cars of each system were handled indiscriminately by every other system, they soon drifted to every quarter, as the current of traffic ebbed or flowed, and their whereabouts were often unknown to the carrier owning them. To correct this evil, car service associations were formed, the primary object of which was to prevent loss by keeping a daily record of every car handled by each carrier, so that each system might receive compensation for the use of its rolling stock, and no unfair advantage he taken by one system over another, and, further, to prevent cars standing idle at one place when needed to meet the traffic demands of another section of the country. These organizations had a beneficial effect, in preventing congestion of empty and idle cars at one point, while a “car famine” prevailed at another. But it. soon became apparent that the remedy was not complete. Carriers earn money by the moving of freight. The idle car produces — 724 — no revenue, and the car service associations found that, while it was possible, under its then existing rules, to keep the unloaded cars moving from place to place as necessity might require, they were without power to have the freight promptly unloaded by the consignee, thus securing the car for further service, The merchant who bought goods for sale from his shelves or through his warehouse was ordinarily anxious to receive and unload his freight, but the broker who wished to do a large business with limited or no warehouse facilities found it cheaper and more convenient to use the cars of the carrier for storage purposes, and thus, with no expense to himself, wait a favorable fluctuation of price, when the commodity could be disposed of to advantage, and the car unloaded or rebilled to another place without unloading. To meet this contingency, the demurrage rules in. question were formulated and promulgated. It should be noted that the purpose of car service associations was not to make money. They increased the revenue of the contracting carriers only incidentally, in that, by keeping every car in active service, the earning capacity was constantly exerted, and the returns therefrom increased. But the prime object of their formation was to conserve and promote the mutual interest of the carriers and the public dealing with them, by improving the service of the traffic department, and insuring the prompt handling and speedy delivery of freight to the consignee. It is admitted that the amount charged under the demurrage rules is reasonable, and it appears to us that the rules, so far as applicable to this controversy, in themselves are fair, and based upon that fundamental maxim of justice; “The greatest good to the greatest number.” The carrier of freight is responsible in damages if it unreasonably delays the transportation of freight delivered to it, and exact justice demands equal diligence of the consignee. "When freight has been transported to its destination and the consignee legally notified of its arrival, it then becomes — 725 — the duty of the consignee to promptly receive the same, so that the car may again be placed in service. These rules work no hardship to the consignee who displays proper diligence in the handling of his freight. Ample time is granted him. But they prevent the dilatory dealers, who seek to save storage or warehouse charges, from keeping the tracks blocked with idle cars; thereby impeding the carriers in the prompt handling of freight, and depriving other dealers of the use of necessary cars to haul their freight or transport the products of the country to market. Certainly no reason, founded in justice, can be given why consignees should not pay for any unreasonable or unnecessary detention of cars. Prompt handling of freight by both carrier and consignee is for the best interests of both, and of the commercial world at large. This question was never before in ¿his court, but this view is in full accord with an almost unbroken line of decisions in other states; and, precedent aside, it is supported by justice and right. Norfolk & Western R. Co. v. Adams, 90 Va. 393, 18 S. E. 673, 22 L. R. A., 530, 44 Am. St. Rep., 916; Kentucky Wagon Mfg. Co. v. O. & M. Ry. Co., 98 Ky., 152, 32 S. W., 595, 36 L. R. A., 850, 56 Am. St. Rep., 326, and cases cited. They have also been approved by various state railroad commissions charged with the duty of guarding the interests of the public. It is well settled that railroad companies may make reasonable rules and regulations, not to limit their own duty or liability, but for the convenient transaction of business between themselves and the shippers of freight over their lines. Having reached the conclusion that the rules imposing reasonable demurrage charges upon dilatory consignees are fair, just, and enforceable, we now pass to a consideration of the manner of their enforcement. It should be borne in mind that the duty of the railroad company as a carrier of freight terminates, under the decisions of our court, when, the freight having reached its destination in good order, the consignee is legally — 726 — notified of its arrival. After that time the railroad holds ‘ as warehouseman and bailee for hire. But in the present case, whether appellant held as carrier, or as warehouseman and special bailee, it was, in either of these capacities, rightfully in possession, and had the right to retain that possession until its legitimate charges were paid. This is a suit in replevin, in which “right of possession” is the only question of law involved. If there was any sum due appellant, whether little or much, the verdict should have been that it retain possession. It is earnestly insisted that the railroad company has no lien on the freight for demurrage charges either by statute or at common law. It may be true that there is a technical distinction between the lien here claimed and the common-law lien, though the difference is more imaginary than real; but it is undoubtedly true that the warehouseman, as bailee for hire, has a lien for his reasonable charges, and this is recognized as to ware-housemen by the express terms of section 2108, Code 1892, in which a lien is given for freight and storage, coupled with a power to sell in a manner therein pointed out. If a carrier has a lien for storage charges if the freight is unloaded into a warehouse, upon what principle can it be denied if, by the action of the consignee, the cars themselves become the storage houses — • particularly when, as in this case, the consignee knows in advance, by his course of dealing with the carrier, that the charges will be incurred if he delays in receiving his freight % In our judgment, by necessary implication, the Code chapter on “^Freight and Storage” carries with it the necessary lien to enforce the collection of all reasonable charges incident to the handling of freight. In a case of this character, involving the dealings of carrier and public, the courts will not narrowly restrict the meaning of the statute, but will rather “expand the principles of law, and fit them to the exigencies of the occasion,” as was aptly phrased by that eminent jurist, Chief Justice Cooper, in discussing a similar proposition. Telegraph Co. v. — 727 — Allen, 66 Miss., 555, 6 South., 463. Knowing the rules governing the transaction, the voluntary action of the consignee gives an implied assent to the charge and lien which those rules assert. By the sole action of the consignee, the carrier is forced to retain possession of the freight. By operation of law, it is required to keep, store, and care for the property of another. It is, under the law, entitled to compensation for its services in this connection, and the law gives it a remedy to enforce its rights. In the case of Wolfe v. Crawford, 54 Miss., 514, our court, in discussing the right of a carrier as a bailee, says: “But the right of the general owner [of the freight] to be restored to the possession is dependent on the payment or tender of the freight and other charges on the goods to the carrier. Ecjr these he has a lien, which would be lost if he parted with the possession, and he cannot be compelled to make delivery until they are discharged. The general owner cannot dispossess the carrier of the goods without payment or tender of his legal demands upon them.” Again: “But a bailee, until the conditions of the bailment have been accomplished, has a property in the chattels, and a possession which is exclusive, both as to the general owner and strangers. . . . His right and possession extend to the entire property; nor can the bailor, or any one claiming through him, interrupt and defeat his rights until a satisfaction of his claim, or an offer to do so. The common carrier, warehouseman, and all the class of bailees who have a beneficial interest, have a right of possession and a lien in the thing. These rights are inviolable until the acts and purposes for which they were created are performed.” In Miller v. Ga. R. Co. (Ga.), 15 S. E., 316, after stating the general rule that a carrier had a right to collect reasonable storage, the opinion proceeds: “We do not think it material as affecting the right to make a charge of this character, that the goods remain in the cars, instead of being put into a warehouse.” 28 Am. & Eng. — 728 — Enc. of Law, 28, p. 663; Dixon v. Central of Ga. Ry. Co. (Ga.), 35 S. E., 369; Barker v. Brown, 138 Mass., 340. There is no force in the argument which concedes the right of the carrier to make demurrage charges, but contends that the goods must be delivered, and then the carrier sue for the amount. This course would give the dishonest and insolvent an unfair advantage, and would breed a multiplicity of suits. It is contended for appellee that, whatever may be the general rule, in the instant case the appellant should be defeated of its recovery because it failed to bring itself within the rules allowing demurrage, in this: It failed to notify consignee in the manner pointed out, and it failed to tender delivery of the freight as required by the rules of the car service association. As to the first contention, it is enough to say that the object of the rule was reached, and the law fully complied with, when George was advised of the arrival of the twelve cars, though, if the testimony of Hall, as supported by the entries in his notice book, be true, the rule was literally complied with. As to the second contention, there is conflict as to the fact. It is true that the cars were not in fact placed in front of George’s warehouse, but the testimony does not clearly show that it was the fault of appellant. On the contrary, the testimony of Eewell, the representative of the car service association, and of Lowry, car checker of appellant company, supported by the contemporaneous entries in their record books, if believed by the jury, show conclusively that, during all of the “free time” to which appellee was entitled under the rules, placing in front of George’s warehouse was prevented by an accumulation of cars consigned to George himself. This is contradicted by Shepherd, car checker for appellee, while appellee himself testified that “there was no place to deliver them. They had our track full of cotton.” With the sharp conflict of testimony on this point, clause “b” of rule 3 must be considered: “The delivery of cars consigned to or ordered to sidings used exclusively by certain — 729 — firms or individuals located on such sidings, shall be considered to have been effected either when such cars have been placed on the sidings designated; or, if such sidings be full, when the road offering the cars would have made delivery had such sidings permitted.”' It was claimed by appellant that the cars would have been placed on siding on arrival, had the siding permitted. There is much proof that the siding was full. "Whether the siding was filled with cars consigned to George or to the cotton compress, in either event appellant was excused from delivering upon the siding. If George had his full'quota of cars, then he had no ground of complaint. If the siding was filled with cars for the compress, it had equal right to use of siding, and appellant is not liable. The court correctly instructed the jury on this point by the fifth instruction for defendant, but also gave the second instruction for plaintiff; and, in the light of our conclusions, this, was error. By this instruction the jury were told that it devolved upon defendant to prove by a preponderance of the evidence that it notified plaintiff of the arrival of the ears, and placed them on the side track adjacent to plaintiff’s warehouse, or “to show circumstances of excuse or justification therefor.” This was misleading. By it the determination of certain questions was submitted to the jury, whereas in fact the questions were not in dispute. The jury did not have to pass on the question of notice. George’s own testimony leaves no doubt of his knowledge of the arrival of the cars. In the light of the instructions for defendant, the jury were left in doubt as to what was meant by “circumstances of excuse or justification therefor.” To sum up, the sole question of disputed fact involved in this record is: Was the siding so filled with cars consigned to George or to others entitled to the use of the side track, as to prevent the railroad company placing the cars until after the expiration of the “free time ?” If so, the railroad was entitled to the verdict. If not, George should recover. Upon this sole question is there — 730 — sufficient conflict to justify the submission of the cause to the jury for determination % The ingenious but fallacious argument is made that the railroad company should not be permitted to claim the fact, if fact it be, that the siding was full of cars consigned to the compress, as an “excuse or justification” (in the language of the second instruction for plaintiff) for the failure to place the cars in question, because of the unjust favoritism shown the compress company by the railroad company in not charging demurrage on cars loaded with cotton. This is not within the condemnation of the rule. Clause “c,” rule 9, prohibits discrimination between persons, and says that, -if the car service be collected from one person, it must be collected “of all who are liable.” This is to prevent discrimination between persons handling cars loaded with the same class of freight, so that if car service is collected from one dealer handling hulls or flour or grain, or other class of freight, it must be collected from all dealers handling the same class of freight. But in the instant case, car service was collected from no car loaded with cotton or coal, no matter by whom handled, anywhere within the territory covered by the Alabama Car Service Association. It is to be seriously doubted whether under the undisputed testimony of the assistant manager of the Alabama Car Service Association, the carriers have the authority to impose car service on the cars loaded with cotton or coal. We know of no reason why we should condemn as unlawful or unjust the exemption of cars loaded with cotton or coal from car service charges, while many reasons present themselves to commend the equity of the rule. In construing the language of said second instruction, the jury might well have inferred, when considering all the instructions together, that even though the siding was filled with cars for George or the compress, this was no “excuse or justification” for the appellant, because no car serivice was collected of the compress. And this position is not maintainable. — 731 — Eor the error in giving the second instruction for plaintiff, above referred to, wbicb is in itself erroneous and misleading, and is in conflict with the other instructions for both plaintiff and defendant, the case is reversed and remanded, and a new trial awarded. As a new trial must be awarded for the error indicated, one further question presents itself for decision. Did the railroad company forfeit its claim for demurrage upon the six cars released by releasing them, or can it hold the remaining six for the charges upon the entire twelve? The twelve cars in question constituted one shipment, belonging to one owner, received at the same time. Further, a different amount of demurrage was due, if any was due, upon four cars, from what was due upon the remaining eight. There was no way to distinguish the four cars from the eight, except by arbitrary selection. The cars were all loaded with the same commodity, loose, in bulk. In 28 Am. & Eng. Enc. of Law, the rule is stated: “The lien [for storage charges] is a right to retain possession of the goods until the satisfaction of the charges imposed upon them. It is specific upon the goods stored for the particular charges for such storage, although the entire lien extends to every parcel of the goods stored at any one time.” In Schmidt v. Blood, 24 Am. Dec., 143, it is said: “A warehouseman has a lien upon the balance left in his hands of an entire lot of merchandise intrusted to him at the same time, after a delivery of part, for the storage of the whole.” And the same conclusion is reached in Steinham v. Wilkins, 42 Am. Dec., 254 — a thoroughly well reasoned case — and fully supported by citation of numerous authorities. In Pennsylvania Steel Co. v. Ga. R. & Banking Co., 94 Ga., 636, 21 S. E., 577, it was decided that a railroad company had the right to retain from each consignment one or more cars to secure itself for the freight and demurrage it claimed on such, consignment. And we think this the true and just rule, supported by reason and the more modern decisions. We are un — 732 — able to see why it should be required of the carrier that it retain twelve cars loaded with the same commodity, belonging to the same owner, when the contents of a fewer number of cars is sufficient to liquidate its charges on all, especially in a case where, as in the instant case, a dispute has arisen as to the validity of the charges claimed, and the consignee is willing to receive die contents of the other cars. As quoted, the conclusion of the Supreme Court of Georgia occurs to us as being the just, sensible, and convenient rule. It avoids the sale of a large amount of freight for the collection of a trifling sum, it saves the consignee the possibility of a loss by the sacrifice of his property at a forced sale, and it gives the carrier the speedy use of its cars for the moving of other freight. We note nothing in the rules under consideration forbidding such action, and it commends itself to us as being the proper course. If the question of fact be decided in favor of appellant, that it is entitled to any demurrage in this case, the six cars retained by it are liable to the charges on the entire twelve constituting the shipment. For the reasons hereinbefore stated, the case is Reversed and remanded.