Chi. & N. W. Ry. Co. v. Mallory

CourtSupreme Court of Nebraska
Citation23 N.W.2d 735,147 Neb. 548
Decision Date12 July 1946
Docket NumberNo. 32075.,32075.
PartiesCHICAGO & N. W. RY. CO. v. MALLORY et al.

147 Neb. 548
23 N.W.2d 735

MALLORY et al.

No. 32075.

Supreme Court of Nebraska.

July 12, 1946.

Appeal from District Court, Douglas County; Sears, Judge.

Action at law to recover demurrage charges by Chicago & North Western Railway Company against John Mallory and the Massachusetts Bonding & Insurance Company. From the judgment, the defendants appeal.


[23 N.W.2d 736]

Syllabus by the Court.

1. While a railroad tariff is in force, it is, in respect to rates named, to be treated as a statute binding as such on both railroad and shipper.

2. Within the contemplation of section 75-213, R.S.1943, the State Railway Commission may establish for each railroad, or for all railroads alike, reasonable rates for the storing and handling of freight and for the use of cars not unloaded after 48 hours' notice to the consignee, not to include Sundays and legal holidays.

3. A railroad company engaged in intrastate commerce may charge and collect demurrage or car service charges in accordance with its tariff schedules, rules, and regulations filed with and approved by the State Railway Commission on cars used in intrastate shipments, where the consignee fails to unload and release them within 48 hours free time after notice of arrival and tender of shipments to such consignee or the one charged with the duty of unloading such cars.

4. Only the charges outlined in the tariff and the services provided for therein, on file and approved by the State Railway Commission, can be furnished by the carrier.

5. Where a jury is waived in a law action and the case tried to the court, the court's findings have the effect of a jury's verdict and will not be set aside on appeal unless clearly wrong.

6. Demurrage is a part of transportation charges and such item is a proper charge against the contractor's bond, along with labor and material.

Evans & Lee, of Broken Bow, and Kennedy, Holland, DeLacy & Svoboda, of Omaha, for appellants.

Dressler & Neely, of Omaha, for appellee.


MESSMORE, Justice.

This is an action at law to recover demurrage charges against a shipper. A jury was waived, and trial was had to the court. The court found generally in favor of the plaintiff and against the defendant, and rendered judgment for the plaintiff in the amount of $896.50, with interest from January 1, 1945, and costs. Upon the overruling of the motion for new trial, the defendants appeal.

The petition alleged, in substance, that the plaintiff is a common carrier operating a line of railroad between Atkinson and Long Pine, Nebraska; that the defendant Mallory had a contract for graveling certain public highways in western Nebraska, and the defendant bonding company signed the statutory bond required of contractors by which payment of all labor and materials, including transportation charges, were guaranteed by the surety. The petition then set out the factual situation upon which the demurrage charges on ten cars of gravel are based, and prayed for judgment in the amount of such charges.

The defendant bonding company denied generally the allegations of the petition, and alleged that plaintiff refused to furnish Mallory with facilities for unloading the gravel, without which he could not unload the cars due to extraordinary and freezing weather, and asked for a dismissal of the suit.

The defendant Mallory admitted the shipping of the cars of gravel, and alleged that the gravel content of the cars had frozen during the time the same was in transit, that the same were a solid mass of ice and gravel, and that it was physically impossible to unload the cars by the usual and ordinary methods or with the machinery and facilities which this defendant had available. The answer then set forth

[23 N.W.2d 737]

facts to show that the delay in unloading the cars was brought about by the carrier's refusal to furnish steam and water so that the lading could be thawed out sufficiently to make unloading possible. The answer also contained a general denial.

The reply alleged, in substance, that the railroad tariffs covering the shipment contained no provision which would authorize the carrier to give the shipper, or the shipper to receive free of charge, either steam or water service for the purpose of thawing out the shipment to make it easy to unload, and had the carrier furnished such service, it would have constituted a violation of sections 75-701 and 75-702, Comp.St.1929, St.1929, now sections 75-501 and 75-502, R.S.1943, as an unlawful preference in view of said shipment. The reply contained a general denial of the affirmative allegations of defendants' answer.

For convenience, the defendants will hereafter be referred to as the appellants, and the plaintiff as appellee.

The appellants assign as error that the court refused to find under the evidence that the delay in unloading the cars of gravel was caused by the unlawful and arbitrary refusal of the appellee to permit the shipper the use of the only available facilities for unloading the shipment, and the appellants, by reason of the arbitrary misconduct of the appellee, were relieved of liability.

The record discloses that car demurrage rules and charges known as I. C. C. No. 3722, certified by the State Railway Commission and applicable on the date involved within the state of Nebraska, provide in Rule No. 2, section A, paragraph 1, page 41: ‘Except as otherwise provided in paragraph 3, of this section, Forty-eight hours' (two days) free time will be allowed to partly or completely load, to partly or completely unload, or to partly unload and partly reload, all commodities.’

Rule No. 3, section C, paragraph 1, page 43, provides: ‘On cars held for unloading, except as otherwise provided in Section B, Paragraph 1, of this Rule, time will be computed from the first 7:00 a.m. after placement on public-delivery tracks, and after the day on which notice of arrival is sent or given to consignee or party entitled to receive same.’

Rule No. 4, section A, page 44, requires a carrier to give notice of arrival to the consignee or party entitled to receive the same, in writing, within 24 hours after arrival of the car, such notice to be sent by United States mail.

Rule No. 7, section A, page 46, provides demurrage charges for detention of cars beyond free time, for each of the first two days $2.20, for each succeeding day, $5.50.

Rule No. 8, page 47 of the tariff provides certain causes for cancellation of demurrage charges. Section 1 provides: ‘When the condition of the weather during any part of the prescribed free time * * * is such as to make it impossible to work at loading or unloading, or impossible to place freight in cars or move it from cars without serious injury to the freight * * * the free time will be extended until a total of forty-eight (48) hours (ninety-six (96) hours on cars subject to Rule 8, Section A, Paragraph 2) free from such interference shall have been allowed; provided, however, no such extension of free time will be allowed unless claim, stating fully the conditions which prevented loading or unloading within the free time, is presented in writing to this railroad within thirty days, exclusive of Sundays and legal holidays, after the date on which demurrage bill is rendered.’

Paragraph 2 of the same section reads as follows: ‘When, at the time of actual placement, lading is frozen or congealed so as to require heating, thawing or loosening to unload, the free time shall be extended forty-eight (48) hours, making a total of ninety-six (96) hours' free time, provided the consignee shall, prior to the expiration of forty-eight (48) hours' from the first 7:00 a. m. after actual placement on an other-than-public-delivery track * * * send or give this railroad's agent a written statement that the lading of the car or cars therein identified by initials and car numbers will require heating, thawing or loosening to unload. If such written statement is mailed, the date of mailing will be settled by the postmark.’

[23 N.W.2d 738]

Sections 75-302 to 75-311, inclusive, R.S.1943, detail the schedule of rates, charges, rules, and regulations which common carriers are allowed to establish, with the approval of the State Railway Commission. Acting under the authority of the statutes, the State Railway Commission promulgated and approved the demurrage tariff with which we are concerned in this case. These statutes provide for penalties for an overcharge on the fixed and established tariff rates filed with the commission; and provide further that the carrier is not to furnish any shipper any service not specifically provided for in the tariffs, and, for violation, fixes the penalty.

In this connection, in the case of Chicago & N. W. R. Co. v. Queenan, 102 Neb. 391, 167 N.W. 410, 411, L.R.A.1918D, 946, the court quotes with approval the following from Jelks v. Philadelphia & R. R. Co., 14 Ga.App. 96, 80 S.E. 216: ‘Since the law imposes upon a carrier the absolute duty to collect freight charges, it may proceed against either the consignee or the consignor; and, to relieve itself from the penalty imposed by law for failure to exact the charges, if it fails to collect them from the consignee it must proceed against the consignor. This is required as a matter of public policy. It is not only the right, but the duty, of the carrier to thus collect the charges.’

And in 102 Neb. on page 397, 167 N.W. on page 412, L.R.A.1916D, 946, in the same case it is said: ‘A shipper is conclusively presumed to know the contents of lawfully established tariffs applicable to his shipments, and when such tariffs require that the freight charges be prepaid or guaranteed, the act of shipping ipso facto imposes on the shipper absolute liability for the payment of lawful charges. Kansas City S. R. Co. v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683. To relieve Kinney & Allen from the payment of the freight charges...

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