Becher-Barrett-Lockerby Co. v. Northern Pac. Ry. Co.

• Decision Date: 30 April 1937
• Docket Number: No. 10804.,10804.
• Citation: Becher-Barrett-Lockerby Co. v. Northern Pac. Ry. Co., 89 F.2d 752 (8th Cir. 1937)
• Parties: BECHER-BARRETT-LOCKERBY CO. v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

89 F.2d 752 (1937)

BECHER-BARRETT-LOCKERBY CO. v.NORTHERN PAC. RY. CO.

No. 10804.

Circuit Court of Appeals, Eighth Circuit.

April 30, 1937.

V. J. Hermel, of Minneapolis, Minn., for appellant.

D. R. Frost, of St. Paul, Minn. (D. F. Lyons, of St. Paul, Minn., on the brief), for appellee.

Before SANBORN and THOMAS, Circuit Judges, and MUNGER, District Judge.

THOMAS, Circuit Judge.

The appeal in this case is from a judgment in favor of the appellee, a common carrier, for reconsignment charges on four cars of grain shipped to the appellant at Minneapolis, Minn., between May 8, 1931, and May 31, 1933, under a tariff then in effect and claimed by appellee to authorize the charges.The appellant contended that, under the circumstances existing at the time, the charges were unauthorized.

The applicable reconsignment tariff of the appellee in effect at the time of the transactions here involved, in so far as material, provided:

"Rule No. 17.Rules and Charges governing Grain, Seeds (Field or Grass), Hay or Straw, Carloads, which is held or stopped for Inspection and Disposition Orders incident thereto at Billed Destination, also Rules and Charges governing Grain or Seeds (Field or Grass), Carloads, held or stopped at Sampling Points on Instructions of Consignor or Consignee.

"Except as provided in Section 4 of this rule, carload shipments reconsigned and not actually inspected will be subject to rule and charges as provided in Rules Nos. 1 to 16, inclusive.

"Section 1.

"Grain, Seeds (Field or Grass), Hay or Straw, carloads, will be placed on hold tracks of the Northern Pacific Ry. at destination (See Note 2) and notice of the location of the said hold tracks on which the cars are placed sent to the consignee, or posted on the bulletin board where such practice is in vogue, for the purpose of inspection (See Note 1) and held on such tracks, for disposition orders.Upon cars so placed and held the following charges will apply:

"(a) Grain and Seeds.When disposition order is received prior to the expiration of the free time provided for in the National Code of Demurrage Rules as published in Agent B. T. Jones Tariff No. 4-H, I. C. C.No. 2003, supplements thereto or successive issues thereof, no charge.When disposition order is given after the expiration of the free time herein prescribed, $2.25 per car.

"Note 1 — The inspection as referred to is:

"(a) On Grain and Seeds, that made under National, State or Board of Trade requirements by competent and impartial authority independent of both vendor or vendee."

Upon arrival of the shipments in appellee's freight terminal yards for Minneapolis, called the Northtown Yard, each car was placed upon hold track designated B-1, where it was held for inspection purposes and disposition order; personal notice of its arrival was given the consignee (appellant); and notice of its location was given by entering upon a grain bulletin board maintained by appellee in its Northtown Yard office the car number, the initials of appellant, the kind of grain in the car, date of arrival, and the track number of the hold track upon which the car was placed.The appellee established the grain bulletin board in its Northtown Yard office in July, 1929; and since that time upon arrival of carloads of grain it has posted notices of the kind used in this case.

It is admitted that no disposition or reconsignment orders were given within the "free time" provided for in the applicable tariff.

It is further conceded by appellant"that if the bulletin board form of notice was in vogue in Minneapolis and if in lieu of personal notice, the posting of notice of the placement of cars upon the bulletin board in their yard office without notifying consignees through their published tariffs or otherwise that they maintained such bulletin board for the purpose of giving such notice constituted a proper notice to consignees of the location of cars, and if such notice, so posted was in conformity to their published tariffs, then the reconsignment charges claimed by appellee were properly assessed."

Before the commencement of the trial the parties filed a written stipulation waiving a jury in accordance with sections 773and875,28 U.S.C.A.(Rev.St. §§ 649,700, as amended).After the conclusion of the introduction of testimony the appellee requested special findings of fact and declarations of law, but appellant made no request for such findings nor any motion for judgment on any ground.Appellant, however, objected to the findings and declarations requested by appellee.Its objections were overruled, exceptions to such rulings allowed, and the court adopted the findings and declarations of law requested by appellee.With two exceptions hereinafter noted appellant's objections were on the general ground that "the evidence did not support such finding."Since none of such findings is material to the contentions in this court, we pass them by without comment, and proceed to a consideration of the findings and exceptions which constitute the bone of contention here.

It will be noted that the tariff provides that notice of the location of the car after its arrival at the yards will be given the consignee in one of two ways.Either such notice (1)"will be sent to the consignee, or (2) posted on the bulletin board where such practice is in vogue."The specific contentions of appellant are that the evidence fails to support the findings and judgment because:

1.The practice of bulletining the notice of the placement of cars in the yard office was not in vogue in Minneapolis because there was no evidence of any general usage on the part of carriers in Minneapolis to post such notices upon bulletin boards, and

2.There was no evidence that appellee had given appellant any notice that appellee had established a bulletin board for such notices in its yards.

The question thus presented, in so far as we are advised, has not heretofore been decided by any court.Certain practices under this same tariff were considered by this court in Van Dusen Harrington Co. v. Northern Pac. Ry. Co., 32 F.(2d) 466, and in Northern Pac. Ry. Co. v. Van Dusen Harrington Co., 60 F.(2d) 394; but the use of a bulletin board for giving notice of the placement of cars was not involved in those cases.

As already indicated, appellant attempted to raise the question of the sufficiency of the evidence in the lower court by objections to the findings requested by appellee.

First, the appellee requested and the court found specifically that notice of the placement and location of the cars upon the hold track was given "in conformity with the rule of the Reconsignment Tariff" set out above by posting the car number, consignee's initials, date of arrival and track number of the hold track on which the car was placed on a bulletin board in the Northtown Yard office.

Objection to this finding was made by appellant"on the ground that the evidence did not support such finding; that the publication of the hold track on which said cars were placed was not in conformity with the rules of the Reconsignment Tariff * * * or in conformity with the Interstate Commerce Act."

Second, the appellee requested and the court declared:

"The Court finds as a matter of law that upon all the evidence plaintiff is entitled to judgment as prayed for in the complaint, and that there is no substantial evidence to sustain a finding for the defendant."

"To which declaration of law defendant(appellant) objected on the ground that the findings of fact and the evidence did not sustain such declaration and that it was not a correct statement of law, and the decision of the plaintiff(appellee) to put the rate in force by posting on the bulletin board in the yard office of the plaintiff the location of the cars after arrival was not published in their tariff in conformity with section 6 of the Interstate Commerce Act49 U.S.C.A. § 6."

The first question raised by these contentions is the meaning to be attributed to the phrase "in vogue" as it is used in the tariff.The appellee is only one of several railroads handling shipments of grain into Minneapolis.Appellant claims that the phrase means a general practice or usage on the part of the carriers in Minneapolis to post notices of the placement of cars upon bulletin boards; that where the practice is used by only one carrier, personal notice must be given consignees of such practice; and that there is no evidence to the effect either that such practice was general or that personal notice of its use by appellee was ever given appellant.

Appellee maintains that the phrase as used in the tariff refers only to the practice of the carrier which promulgates the tariff; that it has no reference to any general practice among carriers; that no notice of the adoption of the bulletin board for giving notice other than the tariff itself is required; and that the bulletin board having been in use for a period of two years, the practice was "in vogue" within the meaning of the applicable tariff.

An examination of the record discloses that there is no special finding of fact by the court as to whether the practice of giving notice of the location of cars by use of a bulletin board was in general use by the carriers in Minneapolis or not.There is no finding as to whether or not appellee ever gave appellant personal notice that appellee had adopted such practice.Further, appellant requested no findings upon these points.Neither did appellant request any declaration of law upon the subject, nor move for judgment on the ground that there was no evidence upon these points to support a judgment against it.Appellee...