Hewitt v. New York, N.H.&H.R. Co.

• Decision Date: 08 October 1940
• Citation: 29 N.E.2d 641,284 N.Y. 117
• Court: New York Court of Appeals Court of Appeals
• Parties: HEWITT v. NEW YORK, N. H. & H. R. CO.

284 N.Y. 117

29 N.E.2d 641

HEWITT

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York.

Oct. 8, 1940.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Frank Hewitt against the New York, New Haven & Hartford Railroad Company for damages for unjust discrimination against consignors in accepting goods for shipment. From an unanimous judgment of the Appellate Division, 258 App.Div. 712, 14 N.Y.S.2d 991, which affirmed judgment of Trial Term for plaintiff, 166 Misc. 186, 1 N.Y.S.2d 292, and in which leave to appeal was denied in 258 App.Div. 792, 15 N.Y.S.2d 824, defendant appeals.

Affirmed. Edward R. Brumley, of New York City, for appellant.

Allen McCarty, of New York City, for respondent.

LEHMAN, Chief Judge.

The defendant railroad maintains in the borough of the Bronx a terminal known as its Harlem River Terminal. Carload shipments of freight consigned to points on the defendant's railroad lines and received by the defendant from the Lehigh Valley Railroad and other railroads at terminals on the New Jersey side of New York are transported on car floats by the defendant to its Harlem River Terminal and from there are hauled by the defendant over its track to the consignees. In the Harlem River Terminal the defendant maintains a building known as the Bronx Produce House, divided into sections which the defendant leases to fruit and produce merchants for use by them for offices and storehouses. Carload shipments consigned to these merchants are delivered there. The plaintiff is a wholesale fruit and produce commission merchant and maintains his principal place of business in two sections in that building which he leases from the defendant railroad company.

The season for the delivery of juice grapes at the Harlem River Terminal starts in August and ends in December in each year. The plaintiff and other commission merchants who are competitors of the plaintiff receive carloads of Juice grapes, during the season, at the Harlem River Terminal. The defendant railroad makes rules and regulations for handling the cars containing such grapes. For the season of 1925 it decided to allot track room for 125 cars in its Harlem River Terminal for delivery of grapes and in August, 1925, it gave notice to all connecting railroad lines that it had placed an embargo on all shipments of grapes intended for delivery at Harlem river, New York, ‘except shipments covered by permits issued by the undersigned.’ Claiming that, in the application of the embargo and of the regulations for handling the shipment of grapes and in the grant to permits during the period when the embargo was in force, the defendant had given ‘undue and unreasonable preference and advantage to certain of plaintiff's competitors and subjected plaintiff to an undue and unreasonable prejudice’ by acts set forth in the complaint, as amplified by the bill of particulars, the plaintiff, in this action, has sought damages for the violation of the defendant's duty to render service to all members of the public without unreasonable or unfair discrimination.

In its answer the defendant denied the material allegations of the complaint and in separate defenses it alleged, first, that the court has no jurisdiction over the subject-matter of the action since it is founded upon ‘an alleged undue and unreasonable preference or advantage by defendant against the plaintiff in the conduct of defendant's business as a common carrier in interstate commerce, and there has been no adjudication by the Interstate Commerce Commission, which by the Federal statutes has full jurisdiction in the premises, of such alleged undue and unreasonable preference or advantage,’ and, second, that in all things the defendant acted ‘in full and exact compliance with the provisions of the Interstate Commerce Act (49 U.S.C.A. s 1 et seq.) * * * and in accordance with defendant's tariffs and official classifications.’ The action was tried by the court without a jury and thereafter the court rendered a decision containing more than three hundred findings of fact. The court found that in many instances, recited in separate findings, the defendant had discriminated unfairly and unreasonably against the plaintiff by delaying or refusing shipments consigned to him and by transporting to the plaintiff's competitors at the Harlem River Terminal cars consigned to them though such cars were received from the connecting carriers later. Upon those findings the court granted judgment in favor of the plaintiff for the consequent damages. The judgment has been unanimously affirmed by the Appellate Division.

The record on this appeal recites that it contains only the pleadings, the ‘defendant's request for conclusions of law which were refused, the decision and the judgment appealed from.’ The defendant does not challenge the sufficiency of the evidence to sustain the findings. It challenges only the jurisdiction or power of the court to pass upon the issue of unfair and unreasonable discrimination or to grant judgment upon findings of such discrimination before the Interstate Commerce Commission has determined that such discrimination exists. Tested by rigid technical rules of pleading and practice there may be some doubt whether the answer or any other part of the record properly presents the question of law which the defendant seeks to bring up for review. We disregard possible technical defects there since it is not disputed that the question was actually litigated and decided in the courts below.

(1)(2) At common law, railroad carriers are under a duty to serve all persons without unjust or unreasonable advantage to any. So this court has said that a carrier should not ‘be permitted to unreasonably or unjustly discriminate against other individuals, to the injury of their business, where the conditions are equal. So far as is reasonable, all should be treated alike; but we are aware that absolute equality cannot in all cases be required, for circumstances and conditions may make it impossible or unjust to the carrier. * * * The facilities for loading and unloading may be different in different places, and the expenses may be greater in some places than in others. Numerous circumstances may intervene which bear upon the cost and expenses of transportation, and it is but just to the carrier that he be permitted to take these circumstances into consideration in determining the rate or amount of his compensation. His charges must therefore be reasonable, and he must not unjustly discriminate against others, and in determining what would amount to unjust discrimination all the facts and circumstances must be taken into consideration. This raises a question of fact, which must ordinarily be determined by the trial court.’ Root v. Long Island R. Co., 114 N.Y. 300, 305,21 N.E. 403, 404, 4 L.R.A. 331, 11 Am.St.Rep. 643.

Congress, exercising its constitutional power to regulate interstate commerce, has in the Interstate Commerce Act (41 U.S. Stat. 474, U.S.Code, tit. 49, s 1 et seq. 49 U.S.C.A. s 1 et seq.) commanded carriers in interstate commerce to perform the duties prescribed or defined in the act and has provided remedies for failure by a carrier to perform such duties. The act declares, however, that ‘nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.’ s 22, subd. 1.

The duty of a carrier to refrain from unjust and unreasonable discrimination in interstate commerce has been formulated in the act as follows: ‘It shall be unlawful for any common carrier subject to the provisions of this chapter to make, give, or cause any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, association, locality, * * * or any particular description of traffic, in any respect whatsoever or to subject any particular person, company, firm, corporation, association, locality, * * * or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.’ s 3, subd. 1.

A carrier is, under the provisions of the act, liable for the full amount of the damages caused to any person or persons by any act of the carrier in the statute ‘prohibited or declared to be unlawful’ or for omission to do any act in the statute ‘required to be done.’ s 8. Any person or persons claiming to be damaged ...