Keystone Lumber Yard v. Yazoo & Mississippi Valley Railroad

Mayes, C. J., delivered the opinion of the court. By consent this cause was tried before the judge- on an agreed statement of facts and a jury waived. The facts will be set. out in the report of the case, therefore it would be useless to449 incumber this opinion with a full statement. The suit is instituted by appellant for tlie purpose of recovering from the railroad company certain delayage charges, claimed by appellant under paragraph 4, rule 10, of the Mississippi railroad commission. This paragraph of the rule provides that a recovery may be had by the consignor or consignee of goods shipped over die railroad “where the cars are detained in transit by being switched to some track between point of shipment and destination,” of one dollar per car for each day or fraction of a day that any such car may be thus delayed. The appellant seeks to recover for a period dating back three years before the filing of the suit. To the declaration several pleas were filed and demurred to by appellants. ■ We do' not deem it necessary to follow the course of pleading further than to say that one of the principal questions raised is as to the application of section 3101, Code 1906; the provisions of that section being that all suits for penalties or forfeitures shall be commenced within one year. The contention of the railroad is that the delayage charges of one dollar per day, fixed by the railroad commission, are penalties, and' appellant is precluded by the statute from any recovery except for charges accruing within one year from the date of the suit. The question presented is one not heretofore decided by this court, but in the case of Keystone Lumber Co. v. Yazoo, etc., R. Co., 96 Miss. 116, 50 South. 445, this court strongly intimated that these charges were not penalties in any true sense. We do not think that anything said in the case of Yazoo, etc., R. Co. v. Keystone Lumber Co., 90 Miss. 391, 43 South. 605, or in the case of Railroad Company v. Searles, 85 Miss. 520, 37 South. 939, was intended to commit the court to the contention here made by the railroad company. In .the above cases the court was not considering the question at the time. For convenient description the court used the word “penalties” in speaking of these — 450 — charges, but had uo thought of any legal characterization as such. The whole idea of this rule of the commission is to afford the injured party, consignor, or consignee, a feed compensation when a railroad delays the transportation of goods. Keystone Lumber Co. v. Yazoo & Missississippi Valley Railroad Company, 47 South. 803, is cited to the effect that either consignor or consignee may avail of this rule. Of course, the public derive an incidental benefit from these rules also, hut the immediate purpose of the rule in so far as it allows the injured party certain feed charges for delay is afford compensation. When goods are delayed in transit, the exact amount of damage caused thereby is often a matter of difficult proof. In order to obviate these difficulties, and secure to the public the benefit that accrues by compelling reasonably prompt handling of the railroad traffic, these rules were promulgated by the railroad commission. The case of State v. Atlantic Coast Line, 56 Fla. 617, 47 South. 969, is a case directly deciding this question. The case just referred to is so thoroughly decisive of this question, and so well reasoned, that we can do no better than quote that part of the opinion to be found on page 649, 56 Fla., on page 980, 47 South., which is as follows, viz.: “The charge allowed a carrier for cars unduly delayed by a shipper is technically called 'demurrage,’ is remedial in its nature, and is clearly not a penalty. So, likewise, the reciprocal charge allowed a shipper for freight unduly delayed on loaded cars by the carrier is in its nature remedial, and is not a penalty. The right of the shipper to have his goods promptly transported by a common carrier is a valuable right. See New Mexico ex rel. McLean v. Denver & Rio Grande Railroad Company, 203 U. S. 38, 27 Sup. Ct. 1, 51 L. Ed. 78; Moore on Carriers, 246. The shipper has as much right to relief from a delay in transporting his freight when it is properly offered — 451 — .as tbe carrier has to relief from a delay of a car unduly held for loading. There may be no injury or depreciation in the value of the car or the freight by a delay, but the right to promptness and convenience exists and may be enforced, and .the public has an interest in the prompt movement of cars needed for other shipments. The purpose designed to be accomplished in allowing this reciprocal charge, or in imposing this reciprocal liability, is to afford the carrier and the shipper a limited cumulative remedy to prevent the delaying of cars and of freight, and to incidentally serve the public welfare by stimulating and facilitating the transportation of freight. The statute expressly provides for cumulative remedies as being peculiarly appropriate to this public service, and specially authorizes the commission to do everything proper and necessary to facilitate intrastate transportation. “A statute may provide for remedial redress to an individual injury by the breach of a public duty, in addition to the penalty imposed to punish for the injury to the public. In determining whether a statute is penal in the strict and primary sense, a test is whether the injury sought to be redressed affects the public. If the redress is remedial to an individual and the public is indirectly affected thereby, the statute is not regarded as solely and strictly penal in its nature. See Huntington v. Attrill, 146 U. S. 657, text 668, 13 Sup. Ct. 224, 36 L. Ed. 1123; Bell v. Farwell, 176 Ill. 489, 52 N. E. 346, 42 L. R. A. 804, 68 Am. St. Rep. 194; Gardner v. New York & N. E. R. Co., 17 R. I. 790, 24 Atl. 831. * * * It is a reasonable provision intended to aid in securing the carrier against tin-undue detention of cars needed for other shippers, whether the car is injured by the delay or not; and to afford the shipper some speedy and practicable relief against loss or inconvenience from undue delay of freight loaded in cars, whether the value of the freight is affected by the delay or not. The interests of — 452 — the carrier, of the shipper, and of the public require of a carrier prompt movement of ears loaded with'freight, in order that the carrier may serve all properly offering.” See, also, Brady v. Daly, 175 U. S. 148, 20 Sup. Ct. 62, 44 L. Ed. 109; Allanta v. Chattanooga Fdy. & Pipe Wks., 127 Fed. 23, 61 C. C. A. 387, 64 L. R. A. 721; note on page 964, vol. 13, Am. & Eng. Ann. Cas. On cross-appeal it is contended by the railroad company that the learned circuit judge was wrong in holding that, under paragraph 4 of rule 10, wherever it was shown that cars were detained in transit by being switched to some track between point of shipment and destination, no free time should thereafter be allowed during the transit of the goods. We think the interpretation of this rule by the trial court was incorrect, and that paragraph 4 of rule 10 only deprives the railroad company of all free time, or claim therefor, when the cars are switched to a track between point of shipment and destination, at the place where this prohibited switching is done. As paragraph 4 inhibited the detention of cars in transit “by being switched to' some track between point of shipment and destination,” and imposed compensatory delayage charges in favor of the consignor or consignee of one dollar per day when same was done, allowing no free time in such case to the railroad company, it would seem unnecessary for the rule to go further, and expressly say that “in such case” no free time shall be allowed,, as this result would seem to follow from the rule, but the railroad commission thought to remove all doubt as to this,' and in so doing have not in any way weakened the force of the rale, or broadened its scope. The rule applies to the case made by it and to none other. Its purpose is to' shut out any claim of freq time when the delay occurs by a breach of that paragraph, but only a.t the point where it occurs and none other. Under — 453 — paragraph 5 certain, free time is allowed. Under it twenty-four hours’ free time is allowed at the end of the freight division on which the shipments originate, and, under this same paragraph, twenty-four hours’ free time is also allowed at .connecting lines on joint shipments. Free time is allowed at these points, not because of any inclination on the part of the commission to show greater indulgence to railroads than to shippers, but because the commission know that at these points delays in transportation must occur of necessity. At the points enumerated in paragraph 5 trains are usually rearranged and cars distributed to be sent on such routes as may be necessary for them to reach their destination. The commission desired to keep its regulations within reasonable bounds and inflict no unreasonable hardships, hence the allowance of free time at these points. If the railroad company violates rule 4, that rule provides its own compensation to the injured party, and if he get compensation that is all the concern that he has about the matter, but the same necessity exists, in so far as the railroad is concerned, for time to rearrange its trains at the points enumerated in paragraph 5. As the railroad has compensated for the breach of its duty under paragraph 4, its scope should not be made to extend so as to create a forfeiture of the free time allowed by paragraph 5. The rules are susceptible of no such construction, and the commission had no such purposes. The shipper is provided with compensation for injurious delays at points not allowed as free, and the carrier has free time at all places where it is allowed by the rules. Where free time is allowed it is not lost save in the manner provided in the particular paragraph so specifying. It follows from what we have already said that the court erred on direct appeal in holding that the one year’s statute of limitations had any application to this suit, and the cause is reversed and remanded on direct — 454 — appeal. The court also erred in'the cross-appeal in holding that no free time is allowable. Reversed and remanded on direct appeal and cross-appeal. After the renditions of the foregoing opinion counsel for the appellant and cross-appellee submitted an elaborate suggestion of error. And thereafter the court delivered the following opinion: ON SUGGESTION OR ERROR. Per Curiam: In response to the suggestion of error filed by appellants in this cause we deem it only necessary to say that the rules of the commission have two objects in view. They are: First, to compensate the shipper for unnecessary delays ; and, • second, -to compel reasonable expedition on the part of the railroad company. Free time is allowed at certain points designated by the rules of the railroad commission, and this free time can be used only at the points where same is allowed. In other words, if there be three points on the line of shipment at which free time is allowed, but mi free time is used by the railroad at two of those points, it cannot consume all the free' time allowed at different points at the third. Free time is allowed at the points designated in the rules because the railroad commission conceived that at these points it was necessary. If the free time be not used at the points where allowed, it cannot be used at any other, even though it result in hastening the shipment to the point of destination many days before it would reach there if all the free time were used at the various points, where allowed. The suggestion of error is overruled.