Great Lakes Steel Corp. v. Detroit, T. & I. R. Co.
| Decision Date | 08 April 1947 |
| Docket Number | No. 60.,60. |
| Court | Michigan Supreme Court |
| Parties | GREAT LAKES STEEL CORPORATION v. DETROIT, T. & I. R. CO. |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Guy A. Miller, Judge.
Action by the Great Lakes Steel Corporation against Detroit, Toledo & Ironton Railroad Company for damages for breach of contract. From a judgment for plaintiff for $59,359.66, the defendant appeals.
Judgment vacated and cause remanded for further hearing and adjudication in accordance with opinion.
Before the Entire Bench.
Bodman, Longley, Bogle, Middleton & Armstrong, of Detroit (Wallace R. Middleton and Harold A. Johnson, both of Detroit, of counsel), for defendant and appellant.
Semmes, Goodrich & McEvoy, of Detroit, for plaintiff and appellee.
In this case, tried in the circuit court without a jury, plaintiff had judgment and damages for breach of contract in the amount of $59,359.66. Defendant has appealed. The questions as presented by the respective parties may be stated in general terms but with sufficient accuracy as follows:
(1) During the period involved (July 4, 1938-March 15, 1942) was defendant common carrier obligated to deliver and pick up freight cars used incident to plaintiff's shipments in intrastate commerce over defendant's lines at points on tracks within the area of plaintiff's plant designated as the scrap track, the brick track and the open hearth tracks; or were defendant's contracts of carriage fully performed by defendant leaving and picking up such cars on its so-called interchange or exchange tracks which were adjacent to or in the general vicinity of plaintiff's plant site?
(2) Was interest on damages recoverable for a period prior to the date of judgment or at least prior to the date of bringing suit?
In respect of the first of the above questions, plaintiff's claim is stated in its brief as follows:
Defendant's contention is that its contract in transporting plaintiff's freight shipments was fully performed by delivery of the cars on defendant's exchange tracks which extend along the west side of plaintiff's plant area. From these exchange tracks there are spurs extending into plaintiff's property to the points of loading or unloading the cars, and these spur tracks are so arranged that the cars might be delivered on the various tracks according to the type of material constituting the particular shipment. One of these spurs is designated the scrap track, one the brick track, and others the open hearth tracks. The unloading points are approximately half a mile from the railroad entrance to plaintiff's plant. During the period involved defendant, notwithstanding plaintiff demanded that it should do so, refused to deliver the freight cars used in intrastate shipments on the tracks within plaintiff's plant, and instead left such cars on defendant's exchange tracks outside of plaintiff's plant. In consequence of defendant's refusal plaintiff was compelled to use its own motive power in moving the cars to the tracks within its plant and in moving outgoing cars to defendant's exchange tracks. It is this refusal of defendant to perform these services which plaintiff claims constitutes a breach of defendant's line-haul contract. This primary phase of the controversy narrows down to the question of law as to whether, in the absence of any tariff regulation of intrastate shipments except the line-haul rate, it was the duty of the carrier to receive cars from plaintiff's intraplant tracks above noted and to deliver them on such tracks, or at least within plaintiff's plant area.
Since in the instant case the controversy concerns only intrastate shipments and is not controlled by tariffs or rulings incident to interstate commerce, we may at the outset eliminate as not being controllingdecisions (in which these same litigants were involved) made incident to rulings of the interstate commerce commission or decisions of the federal courts involving interstate shipments. Likewise, we are of the opinion that the instant suit is not controlled by the dismissal of a former suit instituted in the circuit court of Wayne county by plaintiff against defendant. That suit, evidently in assumpsit, was for collection of terminal allowances alleged to have been due from defendant to plaintiff on shipments prior to those involved in the instant suit. Plaintiff's claim in the instant suit for breach of contract arises from transactions none of which were involved in the former suit in Wayne county. Obviously that suit was not res adjudicata of the instant suit. We are also of the opinion that dismissal of a proceeding brought by plaintiff herein before the Michigan public service commission based upon the same transactions that are involved in the instant suit and which was dismissed on the ground of lack of jurisdiction, followed by this Court's denial of plaintiff's application for leave to appeal from the commission's decision, does not bar recovery in this suit. Our conclusion in this respect is justified because dismissal by the commission was properly based upon the commission's holding that it was without jurisdiction to try the controversy presented. The holding of the commission was in accord with and necessitated by the applicable statutory provisions in this State which limit the Michigan public service commission's power to award damages to cases where ‘the rate or charge exacted is irregular or exorbitant.’ 2 Comp.Laws 1929, § 11026(g), Stat.Ann. § 22.29(g); and further that ‘This act shall not have the effect to release or waive any right of action by the state or by any person for any right, damage, penalty or forfeiture which may have arisen or which may hereafter arise under any law of this state * * *.’ 2 Comp.Laws 1929, § 11062, Stat.Ann. § 22.64.
While we do not deem it controlling of decision herein, it may be noted that from February 15, 1932 to July 4, 1938, the pertinent portion of the tariff filed by defendant with the Michigan commission expressly provided for a terminal allowance of $1.27 per car payable by defendant to plaintiff, the latter during that period having used its own motive power to move cars from defendant's exchange tracks to the desired points within plaintiff's plant. The period just above noted immediately preceded the period during which plaintiff seeks to recover in the instant case; and during the period involved in the instant case there was no tariff regulation in effect as to intrastate shipments which provided for a terminal allowance. But again, effective March 15, 1942, by local freight tariff No. 1315-A, a terminal allowance of $1.27 per car applicable to such transactions as are involved in the instant case was provided. It is the absence of such a tariff provision as to intrastate shipments during the period between July 4, 1938, and March 15, 1942, that has given rise to the instant litigation. As above noted, the controversy is whether, in the absence of a controlling Michigan tariff provision other than the line-haul rate, it was the duty of defendant carrier as a part of its intrastate line-haul to deliver inbound cars on plaintiff's repective tracks designated as its scrap track, brick track, open hearth tracks, etc., and to pick up outbound cars from like locations within plaintiff's plant; or whether on the other hand, ‘the line-haul rates do not extend to such scrap, brick or open hearth tracks within plaintiff's plant’ as asserted in appellant's brief.
As will shortly be noted, we are of the opinion that neither of the two contentions just above referred to is correct. Instead, under the circumstances of this case, a carrier has not fully performed its line-haul duty until it delivers the cars on the side tracks within plaintiff's plant area, provided such sidings are made available by plaintiff; but there the carrier's duty ends. The carrier is not required to separate the cars and deliver them on consignee's respective intraplant tracks at points of loading or unloading. Grand Trunk Western R. Co. v. Mt. Clemens Sugar Co., 277 Mich. 366, 269 N.W. 208. In other words, the defendant carrier was not required under its line-haul contract to deliver some of the cars on plaintiff's scrap track, some on its brick track, and others on the open hearth tracks, etc. But under the circumstances of this case, delivery of a car by defendant was not completed until it was placed on plaintiff's siding within its plant area is such siding was made available by plaintiff. Ward v. Pere Marquette Railway Co., 231 Mich. 323, 204 N.W. 120. On the other hand, discrimination would result, in the absence of appropriate tariff regulations, by requiring the carrier to render service to the consignee beyond that incident to delivery on consignee's tracks within its plant.
‘Likewise, shifts or transfers made by consignees over tracks within their own plants after the arrival of goods are...
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