Davis v. Greensboro Warehouse & Storage Co.

• Decision Date: 20 December 1923
• Docket Number: 391.
• Citation: 120 S.E. 462,186 N.C. 676
• Parties: DAVIS, DIRECTOR GENERAL OF RAILROADS, ET AL. v. GREENSBORO WAREHOUSE & STORAGE CO.
• Court: North Carolina Supreme Court

120 S.E. 462

186 N.C. 676

DAVIS, DIRECTOR GENERAL OF RAILROADS, ET AL. v. GREENSBORO WAREHOUSE & STORAGE CO.

No. 391.

Supreme Court of North Carolina

December 20, 1923

Appeal from Superior Court, Guilford County; Stack, Judge.

Action by James C. Davis, Director General of Railroads, and another, against the Greensboro Warehouse & Storage Company. From a judgment for plaintiffs in half the amount sued for both parties appeal. Modified and affirmed.

Notice from a carrier to consignee's traffic manager by telephone, on receipt of way bills, of the car numbers and initials, number of bales of cotton, and marks thereon, where it was from, and any other information asked for, followed by the carrier's signature of a form on which the information was entered by the traffic manager in duplicate held sufficient notice of constructive placement of shipments, as required by the tariff, of which the traffic manager had full knowledge, thus rendering consignee liable for demurrage charges.

This action was brought to recover demurrage amounting to $8,939.37 which it was alleged had accrued upon a number of carload shipments of cotton consigned to, or deliverable to the defendant warehouse company upon their private tracks in Greensboro, N. C., during the month of April, 1918. The plaintiffs and defendant, through their counsel of record agreed that the following facts may be "considered as proven":

"First. That the statement set forth in the first five paragraphs of the complaint are true, and that James C. Davis has been duly appointed as Director General, and substituted in the place of John Barton Payne, who was Director General at the time of the commencement of this action.

Second. That throughout the month of April, 1918, there was in full force and effect a certain freight tariff on the Southern Railway Company and participating carriers, on demurrage and storage rules, which had been issued February 7, 1918, and which became effective March 15, 1918, which said freight tariff had been promulgated and published by the Southern Railway Company and participating carriers, under the authority and with the consent and approval of the interstate Commerce Commission, said freight tariff bearing the title 'demurrage and storage tariff No. 2,' and being identified by the symbols 'I. C. C. A-8050,' and being applicable at stations and sidings of Southern Railway Company and roads named on page 2 thereof, including the city of Greensboro, and the private siding of defendant hereinafter mentioned. That said freight tariff, promulgated and published as aforesaid under the authority of said Interstate Commerce Commission, is hereto attached and made a part hereof.

Third. That prior to the month of April, 1918, the defendant had under contract with said Southern Railway Company established and throughout said month maintained a private siding constructed and used solely for the purpose of connecting its storage warehouse in said city of Greensboro with the tracks of said Southern Railway Company. That all of the cotton referred to in paragraph 6 of the complaint was consigned to said private siding, and that an agreement had been made and was then existing between defendant and plaintiff that cotton consigned to defendant was to be placed by plaintiff and unloaded by defendant upon said private siding.

Fourth. That the agent of the plaintiff did not deliver a written notice to the consignee of the carrier's inability on account of the condition of said private siding or track to make actual placement thereupon; and that actual placement was made on the respective dates set out in column G, on pages 2 to 9, inclusive, of the itemized statements referred to in paragraph 6 of the complaint. (The admission that the agents of the plaintiff did not deliver a written notice to the consignee of the carrier's inability on account of the condition of said private siding or track to make actual placement thereupon is not to preclude the plaintiff from showing, if he can show, and if in law the court is of the opinion that it is competent to show, that such written notice was by the conduct of the defendant or its duly authorized agents waived).

Fifth. That if, under the provisions of the said tariff and the law bearing thereon, the plaintiff is entitled to recover demurrage, and to recover both upon interstate and intrastate shipments, then the amount set forth in the complaint, to wit, $8,939.37, is the amount due the plaintiff on account of said demurrage.

Sixth. That if, under the provisions of the said tariff, and the law bearing thereon, the plaintiff is only entitled to recover demurrage on interstate shipments, then the amount of demurrage in intrastate shipments should be deducted from said amount of $8,939.37."

It was alleged in the pleadings and proven on the trial that all of the cotton, both intrastate as well as interstate shipments, was handled, shipped and delivered by the United States Railroad Administration during the month of April, 1918; and as the demurrage and storage rules set out in the tariff I. C. C. No. A-8050, upon the face thereof, were "applicable on interstate and intrastate traffic," the court, upon the agreed facts and the law bearing thereon, found correctly that, if the defendant was liable for demurrage during this period, the same liability would accrue under the facts and rules, set forth in the tariff as to intrastate shipments and interstate shipments.

The defendant contended that it was not liable for any demurrage because of a failure on the part of the plaintiffs to comply with the provisions of the tariff, in that written notice of constructive placement had not been given as required by the tariff; and the plaintiffs contended that there had been a substantial compliance with this provision of the tariff by the written notices given the traffic manager of the defendant, as set out in the evidence, and that the notice of constructive placement, if required before demurrage could be collected, as contended for, was waived by its manager, and that, when demurrage accrued and the defendant knew of its accrual, and thereafter unloaded and accepted the cotton, it was liable in law for said demurrage.

The jury brought in a verdict awarding the plaintiffs just half of the amount sued for, to wit: $4,469.68. The plaintiffs thereafter tendered judgment for the full amount as set out in the case on appeal, which the court declined to sign, and the plaintiffs appealed. The court signed judgment for the amount found by the jury, and the defendants appealed.

Wilson & Frazier, of Greensboro, for plaintiffs.

Bynum, Hobgood & Alderman, of Greensboro, for defendants.

CLARK C.J.

Upon the facts agreed, the Southern Railroad Company was duly incorporated, and prior to the time when the United States took possession and control of all the railroads for war purposes it was engaged as a common carrier in the transportation of freight and passengers, and the United States government took possession and was operating this and all other railroads by the Director General, his agents and employees in April, 1918, when this demurrage occurred. The Director General was duly and legally appointed under the act of Congress and the defendants were duly incorporated under the laws of this state and were engaged in shipping and storing cotton, and the plaintiff and defendant entered into the "average" agreement set out in the record. This is a condensed statement of the facts alleged in the first five paragraphs of the complaint, and which are admitted to be true and proven.

As to the other facts set out in the case agreed, the only questions to be determined are as follows:

First, whether the demurrage and storage rules of the tariff in law, as in fact, applied both to intrastate as well as to interstate shipments.

Second, was the written notice of constructive placement substantially good as required by the tariff?

Third, if not, could such written notice in law be waived by the defendant company, and, if so, was the same actually waived?

Fourth, whether the defendants, after receiving the written notices acknowledged to have been sent to them and received by their traffic manager, and after knowledge that demurrage had been incurred, could receive, unload, and accept the cotton without being liable at law for the payment of said demurrage.

As to the first of these questions, the printed tariff, which has been made a part of the facts "considered as proven," states that it is applicable on interstate and intrastate traffic, and paragraph 2 of the facts "considered as proven" states that this tariff is applicable at stations and sidings on the Southern Railway Company and roads named on page 2 thereof, including the city of Greensboro and the private siding of the defendant hereinafter mentioned. This being so, it is not necessary to discuss whether the tariff applied to interstate shipments at law or fact, or whether true and correct amount under the facts as proven was $8,939.37, especially in view of the further...