Davis v. Smutzinger

• Decision Date: 27 June 1922
• Docket Number: 2799.
• Citation: 281 F. 640
• Parties: DAVIS, Director General of Railroads, v. SMUTZINGER et al.
• Court: U.S. Court of Appeals — Third Circuit

281 F. 640

DAVIS, Director General of Railroads, v. SMUTZINGER et al.

No. 2799.

United States Court of Appeals, Third Circuit.

June 27, 1922

J. H Oliver, of Scranton, Pa., and Theo. L. Wilson, of Clarion Pa., for plaintiff in error.

A. M Liveright, of Clearfield, Pa., for defendants in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

PER CURIAM.

In the court below the Director General of Railroads sued the defendants for freight on ten carloads of coal which they had shipped, and which were not accepted by the consignee. The freight on the shipment amounted to some $4,400, and the coal was sold for some $370, and this suit was brought to recover the difference, some $4,100. The defendant filed an affidavit of defense, raising, under the Pennsylvania practice, the question of law as to the legality of the disposition of the coal by the sale. The court decided the question thus raised and entered judgment in favor of the defendants. From this the present appeal was taken.

The entire history of the case and the reasons which led the court below to make the order complained of, are fully set forth in its first opinion on the pleadings as originally filed, and on its reconsideration after an amended statement had been filed. We find no error in the conclusions reached by the late Judge Orr, and accordingly affirm the case on his opinions:

Opinion sur Question of Law Raised by Affidavit of Defense.

This is an action of assumpsit, brought by the plaintiff against the defendant to recover from the latter the sum of $4,082.97 with interest from the 22d day of May, 1919, which the plaintiff avers is a balance of freight and demurrage charges upon ten carloads of coal. This balance is arrived at by deducting from a gross aggregate of diverse freight and demurrage charges the gross amount received from the sale by the plaintiff of the ten cars of coal at the rate of 50 cents per ton. The question as to the sufficiency of the plaintiff's statement of claim is raised by the affidavit of defense in accordance with the provisions of the Pennsylvania Practice Act of 1915 (P.L. 483; Pa. St. 1920, Secs. 17181-17204).

Section 5 of that act (Pa. St. 1920, Sec. 17185) provides: 'Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim * * * but not the evidence by which they are to be proved, or inferences or conclusions of law, and shall be divided into paragraphs numbered consecutively, each of which shall contain but one material allegation,' etc.

Section 20 of that act (Pa. St. 1920, Sec. 17200) provides: 'The defendant in the affidavit of defense may raise any question of law, without answering the averments of fact in the statement of claim; and any question of law, so raised, may be set down for hearing, and disposed of by the court. If in the opinion of the court the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for he defendant, or make such other order as may be just,' etc.

Under the conformity section of the Revised Statutes (Comp. St. Sec. 1537), the provisions of that act, at least in so far as such provisions have been hereinabove quoted, are binding upon this court. Before taking up the plaintiff's statement, it is well to note that the defendants have set forth in their affidavit of defense a number of reasons in support of their objection that the statement of claim does not set forth a proper cause of action. It is unnecessary to detail all of them, because the insufficiency of the plaintiff's statement of claim is the foundation upon which each of them rests.

Taking up the statement of claim, we find in the first and second paragraphs a description of the plaintiff and defendants and the character in which the former sues, and in which the latter are called upon to make defense. In the third paragraph we find the averment that on March 25, 1919, the defendants shipped ten cars of bituminous coal from Hawk Run, Pa., consigned to the Seaboard By-Product Company, Seaboard, N.J., said coal to be transported to Secaucus, N.J., its destination. It is also averred in that paragraph that the coal remained at Secaucus until various dates during May, 1919. The fourth paragraph of the statement contains the averment that the plaintiff had filed with the Interstate Commerce Commission certain tariffs, specifying freight and demurrage charges upon shipments of commodities between the aforesaid points of origin and destination, as required by the various acts of Congress which are referred to. That paragraph also gives the various numbers of the tariffs, and contains the averment that the same were posted and that copies were kept open for the inspection of the public, and that copies of the said tariffs are made a part of the said statement of claim. The following are the fifth and sixth paragraphs of the statement:

'Fifth. Upon arrival at Seaboard, N.J., the said coal was refused by the Seaboard By-Product Company, and it was necessary for the plaintiff to sell the same in order to dispose of the property, inasmuch as the defendants after notice had failed to give orders for disposition of the same. This sale took place on or about the 22d day of May, A.D. 1919.

'Sixth. The amount of freight and demurrage charges, together with the federal war tax added, due in accordance with the tariffs aforesaid upon the aforesaid cars of coal, is $4,454.03; the demurrage being assessed on account of the cars being placed during April, A.D. 1919, and released during May, A.D. 1919. The character, quantity, and description of said shipment, and the freight and demurrage charges as provided by said tariffs, together with general war tax, and also with the dates of arrival and disposition of the said coal at destination, are shown in detail on statement hereto attached and hereby made a part hereof, marked 'Exhibit E."

The seventh paragraph contains the following averment: 'The amount realized by the plaintiff from the sale of said coal is $371.06, being the highest amount which could be obtained at public sale after due notice. The difference between the aggregate amount of freight and demurrage charges and the amount realized from the sale is $4,082.97.'

It is plain from the foregoing that the plaintiff proceeded upon the theory that the carrier has a lien upon the merchandise for the aggregate of the freight and demurrage charges, and that therefore in the instant case the carrier had a right to enforce a lien for the freight and demurrage charge upon the coal shipped in the past by the defendants, and that to enforce such lien he had the right to sell the subject of the lien and apply the proceeds of the sale to the reduction of the amount of the claim and sue the consignor to recover the balance therefor.

Assuming, for the purposes of this case, that the carrier had a lien for both freight and demurrage, we are satisfied that there were certain conditions precedent to be performed by the carrier, before demurrage would begin to run and before a sale of the coal should be had, and therefore a liability could be imposed upon the consignor. Referring now to the car demurrage rules attached to plaintiff's statement, we find it provided in rule 3, section (c): 'On cars held for unloading time will be computed from the first 7 a. m., after placement on public delivery tracks and after the day on which notice of arrival is sent or given to consignee. ' If the siding referred to in the statement of claim, upon which the coal was delivered, was a public delivery track, then under that rule two conditions are required to be performed before demurrage should begin to run, to wit, not only placement, but that notice of arrival should be sent or given.

In rule 4, section (a), it is provided: 'Notice shall be sent or given consignee by carrier's agent in writing, or as otherwise agreed to by carrier and consignee, within 24 hours after arrival of cars and billing at destination; such notice to contain point of shipment, car initials and numbers, and the contents, and, if transferred in transit, the initials and number of the original car. In case car is not placed on public delivery track within 24 hours after notice of arrival has been sent or given, a notice of placement shall be sent or given to consignee.' Again, section (c) of rule 4 provides: 'Delivery of cars upon private or industrial interchange tracks, or written notice sent or...