Gault Lumber Co. v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 11 February 1913 |
| Citation | 130 P. 291,37 Okla. 24,1913 OK 98 |
| Parties | GAULT LUMBER CO. v. ATCHISON, T. & S. F. RY. CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The last connecting carrier of an interstate shipment has authority to apply the proper interstate tariffs, and collect demurrage due, on foreign cars in its possession, which have been used in transporting interstate shipments.
A carrier, engaged in transporting interstate commerce, has a lien for demurrage charges on the shipment left in a car after the expiration of the free time allowed by the interstate tariffs under which the shipment was made.
A carrier does not waive its lien for demurrage charges on shipments left in cars after the "free time" for unloading same has expired, notwithstanding the carrier has "spotted" the car and has permitted the consignee to remove a portion of the shipment. Such a delivery on the part of the carrier is not an unconditional delivery, but is a qualified delivery for the purpose of permitting the consignee to remove the shipment within the "free time" allowed; if more time is used than allowed by the tariffs in force, the carrier may, to enforce its lien for demurrage, take possession of the car, notwithstanding a part of the cargo has been unloaded by the consignee.
Additional Syllabus by Editorial Staff.
Demurrage is one of the "other charges" authorized by section 2 of the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat 584 [U. S. Comp. St. Supp. 1911, p. 1288]).
Commissioners' Opinion, Division No. 1. Error from Oklahoma County Court Sam Hooker, Judge.
Action by the Gault Lumber Company against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Warren K. Snyder, of Oklahoma City, for plaintiff in error.
Cottingham & Bledsoe and Charles H. Woods, all of Oklahoma City, for defendant in error.
This is an action in replevin to recover possession of certain lumber contained in car No. 13112, initials S. W., of the value of $320.50, and certain other lumber contained in car No. 70397 initials M. K. & T., of the value of $92.91. The cause was tried to the court, without a jury, on an agreed statement of facts (and other evidence).
The agreed statement reads as follows: "That the two cars containing the lumber and building material involved in the above-entitled cause bear numbers and initials as follows: 'S. W. No. 13112,' and 'M. K. & T. No. 70397.' That car S.W. No. 13112, and the shipment therein contained, originated from Minden, in the state of Louisiana. That the car M. K. & T. No. 70397, and the lumber and material therein contained, originated and was shipped from Groveton, in the state of Texas. That the car S.W. No. 13112, reached the tracks of the Missouri, Kansas & Texas Railway Company at Oklahoma City on the ______ day of ______. That the Gault Lumber Company was notified of the arrival of car No. 13112 at 8:20 o'clock a. m. on the 26th day of June, 1908. That the Gault Lumber Company was notified of the arrival of car No. 70397 at 8:30 o'clock a. m. on the 24th day of June, 1908.
That car No. 13112 was set on the spur track of the defendant at the rear of the place of business of the plaintiff, the Gault Lumber Company, in Oklahoma City, at 5:10 o'clock p. m. of June 29, 1908. That car No. 70397 was actually set or placed on the track of the defendant in the rear of the place of business of the plaintiff in Oklahoma City, state of Oklahoma, at 5:10 p. m. on the 2d day of July, 1908. That car No. 13112 was locked by the defendant on the 3d day of July, 1908, at 10 o'clock a. m. of said day. That car No. 70397 was locked by the defendant at 9:30 o'clock a. m. July 7, 1908. That, at the time said cars were locked, they contained the lumber described and set out in plaintiff's petition and affidavit of replevin, and the said cars had been unloaded, save and except lumber contained in them at the time they were locked by the defendant. It is stipulated and agreed that this agreement as to the facts and the extent herein agreed shall not be considered as being a full agreement as to all the facts, but the other things necessary to make out a cause or make a defense may be proven by the parties acting through their attorneys just as though this agreement had not been entered into." The evidence further shows that immediately after the expiration of the 48 hours "free time," allowed by the railway company for unloading these cars, had expired, demand was made by the railway company for payment of demurrage charges, on each car, at the rate of $1 per day for each day after the so-called "free time" had expired; that the plaintiff refused to pay the same; and that thereupon the railway company took possession of said cars and locked the doors, whereupon plaintiff brought replevin. Judgment was entered in favor of the railway company, and the plaintiff, feeling aggrieved, brings error.
Three separate propositions are raised and urged by plaintiff in error in the presentation of this case, viz.: First, that the defendant was not the proper party to collect this demurrage charge, because it did not own the cars in which the freight was loaded; second, that the law did not give the defendant a lien for demurrage charges; and, third, if the law did give a lien, that lien was waived by delivery of the shipments.
The proposition first above set out is thoroughly and completely disposed of by defendant in error in its brief, wherein it is shown:
First. That it was the last connecting carrier of an interstate shipment. U.S. v. Stockyards Co. (C. C.) 162 F. 556; Railway Co. v. Wichita Who. Gro., 55 Kan. 525, 40 P. 899; Railway Co. v. Rock Island, 109 Ill. 135, 50 Am. Rep. 605; Ky. Wagon Mfg. Co. v. R. R. Co., 98 Ky. 152, 32 S.W. 595, 36 L. R. A. 850, 56 Am. St. Rep. 326; Heymann v. Railroad Co., 203 U.S. 270, 27 S.Ct. 104, 51 L.Ed. 178, 7 Ann. Cas. 1130; McNeill v. Railroad Co., 202 U.S. 543, 26 S.Ct. 722, 50 L.Ed. 1142; Stockyards Co. v. L. & N. R. Co., 118 F. 113, 55 C. C. A. 63, 63 L. R. A. 213; Interstate Commerce Comm. v. Chicago Ry. Co., 186 U.S. 320, 22 S.Ct. 824, 46 L.Ed. 1182; Walker v. Keenan, 73 F. 755, 19 C. C. A. 668; Houston & Tex. Central v. Mayes, 201 U.S. 321, 26 S.Ct. 491, 50 L.Ed. 772; West Tex. Fuel Co. v. Tex. & Pac., 15 Interst Com. Com'n R. 443.
Second. That the cars while in its possession were detained by the plaintiff for such a period as to call into operation an interstate tariff.
Third. That, being one of the connecting carriers of an interstate haul, it became the duty of this defendant to apply the proper interstate tariffs to the facts arising and as they arose.
Fourth. This tariff provides, among other things, as shown by the Record, p. 60, that it applies to all cars and applied to the cars in question. We quote two sections of this tariff:
The second proposition, that the law does not give a carrier a lien for demurrage charges, on first thought, under the early decisions of the courts, might seem to be tenable, yet an examination of the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1911, p. 1288]), convinces us that demurrage is one of the "other charges" authorized by section 2 of said act, and that the company is given a lien on shipments, for demurrage, as well as for freight, or other terminal charges. Michie v. New York, N.H. & H. R. R. Co. (C. C.) 151 F. 694.
This being an interstate shipment, the state law, of course, gives way to the federal statute, and by the Hepburn Act, supra, it is provided that the carrier shall provide and file, with the Interstate Commerce Commission, and print and keep open to public inspection, schedules, showing all rates, fares, and charges of transportation between different points on its own route and points on the route of any other carrier, and provides "that the schedule printed as aforesaid by any such carrier, shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges, which the Commission may require, etc."
The railway company, at the trial, offered, and the same was admitted by the court as evidence, the interstate tariff kept on file at its office in Oklahoma City, and also showed that it had been filed with the Interstate Commerce Commission as required by section 2 of the Hepburn Act, supra. The existence of the tariff, the filing of the same with the Interstate Commerce Commission, and the keeping of two copies at the depot in Oklahoma City as required in the Hepburn Act are not in any manner denied by plaintiff. The reasonableness of these interstate charges, as shown by these tariffs, cannot be here inquired into. If the rates therein embodied are excessive, unfair, or unreasonable, complaint must be made to the Interstate Commerce Commission, which has exclusive jurisdiction, in the first instance, to inquire relative thereto. By the terms of said tariff, which is practically the same as the old car service rules, it is provided that, "after the expiration of the free time allowed, a...
To continue reading
Request your trial