Buschow Lumber Co. v. Union Pac. R. Co.

• Decision Date: 29 June 1925
• Docket Number: No. 15403.,15403.
• Citation: 276 S.W. 409
• Parties: BUSCHOW LUMBER CO. v. UNION PAC. R. CO.
• Court: Missouri Court of Appeals

276 S.W. 409

BUSCHOW LUMBER CO. v. UNION PAC. R. CO.

No. 15403.

Kansas City Court of Appeals. Missouri.

June 29, 1925.

Rehearing Denied July 13, 1925.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Action by the Buschow Lumber Company against the Union Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. M. Lillard, of Topeka, Kan., and Watson, Gage & Ess, of Kansas City, Mo., for appellant.

Grover, Tipton & Graves, of Kansas City, Mo., for respondent.

ARNOLD, J.

This is an action to recover demurrage and penalty charges assessed on a carload of lumber. The facts are that in March, 1920, the George Palmer Lumber Company, of La Grande, Or., shipped a carload of lumber to plaintiff at Grand Island, Neb.; that the car arrived at destination on or about April 9, 1920, whereupon defendant notified plaintiff of its arrival and asked for disposition; that plaintiff, on the following day, sent the original bill of lading and a reconsignment order to defendant's freight agent at Kansas City, directing the car sent to the City Lumber Company, at Detroit, Mich. On April 13 defendant returned the diversion order to plaintiff, stating that defendant was unable to accept same at that time on account of railroad strikes. On April 14, plaintiff returned to defendant the diversion order and bill of lading, stating they knew no rule whereby defendant could refuse to accept the diversion order because of a railroad strike, and asking for tariff authority on the point, at the same time repeating the request that the shipment be diverted as directed. The matter rested in this situation, and nothing further was heard of the shipment, until the following July, when plaintiff was informed by letter that the car had arrived at Detroit on June 28, and was delivered to the Detroit Terminal on July 2, 1920. It appears the car remained at Grand Island from April 9 until the 17th or 18th of May, 1920. Defendant assessed a demurrage penalty against said shipment as follows:

                 4 days @ $2 per day..............  $ 800
                28 days e  5 per day.............. 140 00
                38 days @ 10 per day.............. 380 00
                                                   ______
                    Total .......................          $528 00
                War tax .........................            15 84
                                                           _______
                    Grand total .................          $543 84
                

The petition alleges the amount paid was $541.84 in demurrage and excess freight charges. It is shown by the record that the amount of $543.84 was paid by the consignee at Detroit and by it charged to plaintiff. The evidence tends to show that payment of this amount was demanded by the delivering carrier at Detroit before delivery would be made. This suit was instituted to recover said sum from defendant. The petition alleges necessary formal matters, and in addition states that defendant "negligently and carelessly refused to make said reconsignment, and refused to notify plaintiff that it had neglected to make said reconsignment, and refused to notify plaintiff that it had neglected to make said reconsignment and overcharged the plaintiff the sum of $541.84 demurrage and excess freight charges." The petition further states that on July 2, 1921, defendant compelled plaintiff to pay said overcharges and excess freight charges before it would deliver the aforesaid car, and that plaintiff paid the said sum under protest.

Defendant's third amended answer generally denies, and for affirmative defense, in effect, admits the delay and the charges as detailed in the petition, sets forth in detail the restrictions and embargoes of the railroads entering Detroit, Mich., which caused defendant to issue its embargo in question, and further alleges that the traffic congestion and labor troubles resulted from a strike of the switchmen employed by the Detroit Terminal Railroad Company, a common carrier having lines within the city of Detroit, that said switchmen went on a strike on or before April 8, 1920, and continued up to and after May 17, 1920, and that by reason of the same the Detroit Terminal Railroad Company was unable to receive carload shipments of lumber from interstate common carriers entering Detroit, for delivery to the City Lumber Company.

Plaintiff filed a motion, which the court sustained, to strike out all of defendant's third amended answer, except the general denial, upon the ground that such answer constituted no defense to the petition. A term bill of exceptions was saved to the court's said ruling. Defendant filed no additional pleadings, and the cause went to trial to the court upon the issues thus made, to wit, the petition and the general denial in the third amended answer. The finding of the court was for plaintiff in the principal sum of $541.84, and interest thereon from July 2, 1921, making a total of $649.34, and judgment therefore was entered accordingly. A motion for new trial was unavailing, and defendant appeals.

In addition to proof relating to the offer and refusal of the reconsignment order, plaintiff introduced in evidence, over defendant's objection, a receipt given by the Michigan Central Railroad Company, a connecting carrier, to the City Lumber Company, showing payment of the demurrage and penalty charges in question. There was also evidence showing that plaintiff reimbursed the City Lumber Company for said payment. The court permitted defendant to introduce in evidence the provisions of the tariff forbidding the reconsignment of a shipment to a station under embargo, and also the embargoes issued by defendant against shipments to Detroit, Mich., during February, March, April, and May, 1920. These embargoes were shown to have been issued by the superintendent of transportation of defendant company. The evidence showed that the charges in question were assessed at the rate specified by plaintiff's demurrage tariff filed with the Interstate Commerce Commission. It was shown that the strike during the months of April and May, 1920, was general through the Uniter States; that the roads entering Detroit, including the Detroit Terminal, made efforts to keep traffic moving; that the Michigan Central Railroad, over which the shipment here involved was routed, was less seriously affected by the strike than other roads; and that service 30 per cent. normal was maintained thereon. At the conclusion of all the evidence plaintiff presented a motion to strike out all the evidence pertaining to embargoes, which the court overruled. Thereupon defendant offered, and the court refused, a declaration of law in the nature of a demurrer to the evidence.

At the request of defendant, the court declared the law to be that, under the reconsignment tariff of defendant, it had the right to refuse a shipment of lumber to a station against which there was an existing embargo, even though the embargo was occasioned by the negligence of a connecting carrier; that defendant was under no legal duty to notify plaintiff a second time of its inability to accept the diversion order or to advise it of any tariff provisions which authorized its refusal; that the assessment of damage charges resulting from failure or refusal of a carrier to reconsign a shipment does not constitute an overcharge in demurrage; and that the burden of proof was on plaintiff to prove negligence and the fact of overcharge. But the court refused, and of this there is complaint, to give declarations of law offered by defendant to the effect that a strike of switchmen employed by carriers entering Detroit, "which greatly reduced the ability of or rendered impossible for carriers entering Detroit, Mich., to transport to and deliver shipments of lumber in Detroit, Mich., was a legal excuse for defendant's refusal to accept the diversion order tendered by plaintiff, and the only duty devolving upon the defendant, after such refusal, was to notify the plaintiff of its inability to execute the diversion order and of the cause of such inability." And the court further refused to declare the law to be that plaintiff's action is one ex delicto to recover demurrage charges alleged to have been illegally assessed. The court made a finding of facts offered by plaintiff and rendered judgment as above indicated.

Appellant contends the court erred in striking from the third amended answer the allegation relative to the reconsignment tariffs because the same were a legal defense to plaintiff's cause of action. This assignment is based upon the theory that the rulings of the Interstate Commerce Commission are controlling, and that they become a part of every contract in interstate shipments, and have the restrictive effect of a statute; that they prescribe and limit the services and facilities in transportation which a carrier is required and permitted to offer, and may not directly or indirectly be disregarded by the carrier.

Section 9 of the Interstate Commerce Act (U. S. Comp. St. § 8573) provides that:

"Any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any District or Circuit Court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt."

The proviso to section 22 (U. S. Comp. St. § 8595) declares that:

"Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies."

In construing this section, the United States Supreme Court, speaking through Mr. Justice Lamar, in the ease of Penn....