Chicago, Rock Island & Pacific Railway Company v. Consumers Coal Company
| Decision Date | 05 March 1917 |
| Docket Number | 212 |
| Citation | 193 S.W. 93,127 Ark. 603 |
| Parties | CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. CONSUMERS COAL COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; modified and affirmed.
Judgment modified and affirmed.
Thos S. Buzbee, Geo. B. Pugh and Chester L. Johnson, for appellant.
1. This suit is not prosecuted by the shipper of the coal, under the Act No. 1903, Acts 1907, but by the consignee. The act is penal and should be strictly construed. The language is plain and the forfeiture is to the shipper and to no one else.
2. Defendant should have been allowed four days to carry the shipment; the court below assessed penalties on a three days' movement from Hartford to Little Rock. Booneville is a divisional point, where freight destined east must be taken from the trains and placed in other trains, after classification, etc. The time allowed by the act for rehandling freight should be considered. Only 51 days should have been allowed, if our first contention is not sustained.
3. The act does not authorize the allowance of attorney's fees nor does any other law.
Marvin Harris, for appellee.
1. The statute is remedial as well as penal. The act provides that the shipper or other party whose interest is affected by the delay, may recover. It was the intention of the act that the real party in interest should recover. Sutherland on Stat. Const. (2 ed.), §§ 337, 532, 526; Kirby's Digest, § 5999.
2. According to the agreed statement of facts, appellee was the shipper. Delivery to the carrier is delivery to the consignee, and the consignor has no title or right of possession and can not sue for conversion or damages by delay. 79 Ark. 456; 105 Id. 53; 115 Id. 221; 118 Id. 17.
3. The attorney's fee was properly taxed as part of the costs. Kirby's Digest, § 6621; 66 Ark. 602; Ib. 543; 112 Id. 125.
This cause was tried upon an agreed statement of facts, which may be summarized as follows: The appellant railroad company operates a line of railroad from and through this State. Hartford is a station in Arkansas on this railroad, 147 miles west of Little Rock, which is also located on said railroad. Between the stations of Hartford and Little Rock is located the station of Booneville, which is a division point on said line of railroad. Carload freight, consigned from Hartford, and other stations west of Booneville, destined for points east of Booneville, are handled into the station of Booneville, by trains which terminate at said point, and the said trains are broken up and cars containing freight for eastern points are classified and placed in other trains, to be carried on to the respective destinations of said freight. That cars loaded with coal, with correct shipping instructions, were delivered to the railroad company by various coal companies located at Hartford, and by the Midland Valley Railroad Company, consigned to the Consumers Coal Company at Little Rock, which company was the plaintiff below. That the total number of days, or fraction thereof, of delay of said cars of coal, after deducting the free time allowed at the station of Hartford, Sundays, and holidays, and using three days as the time within which defendant was required by law to move said cars of coal from Hartford, Arkansas, to Little Rock, Arkansas, amounted to 118 days. That by using the period of four days as the basis of computing the delay to said cars, the total number of days delay amounted to 51. That the coal contained in said cars was purchased by the plaintiff, f. o. b. mines at Hartford, and other points on the Midland Valley Railroad, and the bills of lading issued to cover the shipments of coal consigned to plaintiff at Little Rock, were signed by the individual or company which delivered the cars of coal to either the defendant railway company or its connecting carrier, the Midland Valley Railroad Company. That the coal was bought by plaintiff at certain prices, f. o. b. mines, and the freight thereon was paid by plaintiff on delivery before it was delivered to plaintiff's customers at the request of the plaintiff, the customers paying the freight bills in such cases and deducting the amount of the freight bills from the prices agreed upon for the coal.
The court awarded judgment for plaintiff for $ 590, the full amount sued for, that is, for the penalty of $ 5 per day for 118 days, and assessed an attorney's fee in favor of plaintiff's attorney, and this appeal has been prosecuted to reverse that judgment.
This suit was instituted under the authority of Act No. 193, Acts 1907, p. 453. Section 2 of this act provides that, when freight in carloads or less is tendered to a railroad company, and correct shipping instructions given, the railroad, upon receiving such freight, must carry it forward at the rate of not less than fifty miles per day of twenty-four hours, computing from 7 o'clock A. M., the day following the receipt of shipment, and for failure to receive and transport such shipments within the time prescribed, "the railroad company so offending shall forfeit and pay to the shipper" the sum of five dollars per car per day, or fraction thereof, on all carload freight, and one cent per hundred pounds per day or fraction thereof, on freight in less than carloads, with a minimum charge of five cents for any one package, upon demand in writing by the shipper, or other party whose interest is affected by such delay; "provided, that in computing the time of freight in transit, there shall be allowed twenty-four hours at each point where transferring from one railroad to another or rehandling of freight is involved, and in all computation of time between shippers and carriers, Sundays and legal holidays are to be excluded." There are other provisions in this section covering the shipment of live stock, and the allowance of time for delay resulting from accident, or other cause which the railroad company could not prevent, which is unimportant here.
It is first insisted that the plaintiff below had no right to maintain this suit, for the reason that he is not a shipper within the meaning of the act. The act provides that the railroad company "shall forfeit and pay to the shipper the sum of five dollars per car per day." But it will be observed that the cause of action is conferred "upon demand...
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