FROM
the circuit court of Yazoo county, HON. WILEY H. POTTER
Judge.
The
Keystone Lumber Yard, a corporation, appellant, was plaintiff
in the court below; the Yazoo & Mississippi Valley Railroad
Company and the Illinois Central Railroad Company, appellees
were defendants there. From a judgment in favor of plaintiff
for a sum much less than its demand it appealed to the
supreme court, and the defendant prosecuted a cross-appeal.
This
suit was instituted by the plaintiff against the Yazoo &
Mississippi Valley Railroad Company and the Illinois Central
Railroad Company, to recover damages alleged to be due
plaintiff by defendants because of the delay in the
transportation of cars of lumber, it being alleged that they
were not delivered within a reasonable time as required by
the delayage and demurrage rules adopted by the railroad
commission. There was a judgment for plaintiff, the court
confining recovery to damages accruing within one year prior
to the institution of the suit, and holding that, where there
was a delay caused by switching the cars to some point
between the point of origination and destination, the
railroad company, by the rules of the commission, forfeited
all free time allowed at junction points or division ends.
The agreed statement of facts upon which the case was tried
is as follows:
AGREED
STATEMENT OF FACTS.
"(1)
That rule 10 of the demurrage and delayage rules of the
Mississippi railroad commission, adopted June 8, 1904, and
effective June 18, 1904, has been in force since said
last-named date, and is now, and reads as follows:
"'Cars
detained or held on account of shipper's failure to load
or for want of proper shipping instructions, or by reason of
improper loading, when loading is done by shipper, shall be
subject to demurrage charges of $ 1.00 per car per day, or
fraction thereof, so detained.
"'Shipper
must be notified as soon as cars improperly loaded are
received from him, in which case demurrage shall begin with
notification.
"'Likewise
when cars are properly loaded, and shipping instructions
given, the railroad agent must immediately issue bills of
lading; and if said car or cars are detained or held, and not
carried forward within twenty-four hours thereafter, said
railroad company shall be liable to said shipper for the
payment of $ 1.00 per car for each day, or fraction of a day
that said car or cars are thus detained or held.
"'Likewise
where cars are detained in transit by being switched to some
track between point of shipment and destination, one dollar
per car will be charged for each day or fraction of a day of
delay thus caused, and no free time will in such case be
allowed.
"'Twenty-four
hours' free time will be allowed for delay at the end of
the freight division on which shipments originate, and a like
period of twenty-four hours' free time for delivery to
connecting lines on joint shipments, and a charge of one
dollar per car delayage shall be charged for each day or
fraction thereof in excess of twenty-four hours same is held
at such freight division or connecting point.'
"(2)
That the annexed Exhibit A hereto is a correct abstract and
statement of what the records of the defendants show with
reference to the receipt, delivery, and transportation of the
car load lots of lumber therein named, and that said cars
were billed from the places named, by the parties named, on
the dates named, and received by the plaintiff on the dates
named in his declaration, from, and including September 29,
1906, to September 28, 1907, and that said records were
correctly kept, and show the facts in connection with the
transportation of said cars, as they actually existed.
"(3)
That Chatawa, Mississippi, and Stevens, Mississippi, are
below McComb, in said state; that from McComb to Canton is a
freight division of the I. C. Railroad Company; that Jackson,
or Asylum, is a junction of the I. C. Railroad Company with
the Y. & M. V. Railroad Company; that from Asylum to Gwin,
which is north of Yazoo City, is a freight division of the Y.
& M. V. Railroad Company, and that there are no other
junctions or freight divisions between Stevens, Mississippi,
or Chatawa, Mississippi, and Yazoo City, Mississippi.
"(4)
That neither of the defendants has ever paid to the plaintiff
or any consignor any reciprocal demurrage or delayage charges
on the cars named in said Exhibit A.
"(5)
That Exhibit B hereto annexed shows the true date of the bill
of lading, the true date of delivery to consignee, with
reference to each car, and the Sundays and legal holidays
each car was out, also the free time defendant claims on
each, as would be testified to by J. A. Maus for defendant.
"(6)
That the car service association rules were in force between
and at the points of origination and destination named in
plaintiff's declaration.
"(7)
That rule 1 of the demurrage and delayage rules of the
Mississippi railroad commission, adopted June 8, 1904, and
effective June 18, 1904, has been in force since said
last-named date, and is now, and reads as follows:
"'Railroad
companies shall, within twenty-four hours after the arrival
of shipments, give notice by mail, or otherwise, to consignee
of arrival of goods, together with weight and amount of
freight charges due thereon and on goods in car load
quantities; said notices must contain letters or initials of
the car, number of the car, and, if transferred in transit,
the number and initial of the original car, net weight and
the amount of freight charges due on same. No demurrage
charge shall be made unless legal notice of arrival is given
to consignee.
"'Any
railroad company failing to give such notice, and to deliver
such freight at its depots or warehouses, or, in case of
shipment for track delivery to place loaded cars at an
accessible place for unloading, within twenty-four hours
after arrival, computing from 7 a. m. the day following the
arrival, shall forfeit and pay to the consignee or other
party whose interest is affected, the sum of $ 1.00 per car
per day or fraction of a day, on all car load shipments, and
one cent per hundred pounds per day or fraction thereof, on
less than car load lots, with a minimum charge of five cents
for any one package, after the expiration of said twenty-four
hours.'"
"(9)
That rule 15 of the demurrage and delayage rules of the
Mississippi railroad commission, adopted June 8, 1904, and
effective June 18, 1904, has been in force since said
last-named date, and is now, and reads as follows:
"'In
all computation of time under these rules, Sundays and legal
holidays are to be excluded.'
"(10)
That Stevens, or Chatawa, Mississippi, are the points from
which shipments named in the plaintiff's declaration were
made furthest south on the line of the defendant Illinois
Central Railroad Company, and that Fernwood, Elton, Norfield,
Brookhave, Cole Springs, and Hazlehurst are north of McComb
City, and south of Jackson, Mississippi, on the line of the
defendant Illinois Central Railroad Company, and that Crystal
Springs is on said line of railway, between McComb City and
Jackson, and that Anding and Flora are on the line of the
Yazoo & Mississippi Valley Railroad Company, between Jackson
and Yazoo City, Mississippi.
"(11)
That, in rendering judgment in this cause, the court shall
recite therein its rulings upon the legal questions arising
in the case, to which either side shall be considered to have
taken exceptions, with like effect as if a special bill of
exceptions had been taken on each ruling."
Exhibit
A referred to in the foregoing statement of facts is a
tabulated statement showing the movement of the various cars
of lumber consigned to plaintiff, setting out the method of
handling said cars at relay stations or division ends along
the line, the time of arrival at and departure from such
stations; said information being obtained from the
conductor's reports.
Exhibit
B shows date of shipment and bill of lading, point from which
shipped, divisions and connections, date of arrival at
destination, time in which delivery could have been made,
time each car was out, free time, including Sundays and legal
holidays, and the delayage.
The
rules of the Mississippi railroad commission touching
demurrage and delayage, adopted June 8, 1904, effective June
18, 1904, are given in the report of the case of Yazoo,
etc., R. Co. v. Keystone Lumber Co., 90 Miss. 391, 43
So. 605.
Reversed and remanded on direct appeal and cross-appeal.
Suggestion of error overruled.
E. L.
Brown, and Henry, Barbour & Henry, for appellant and
cross-appellee.
This
suit was brought to recover delayage charges, on account of
delay in the shipment of carload lots of lumber, occasioned
by switching between the points of origination and points of
destination under Rule 10 of the Mississippi railroad
commission, and covers a period commencing November 11, 1904,
and ending with September 28, 1907, the date on which the
original declaration in this case was filed.
The
amended declaration was filed by the Keystone Lumber Yard on
April 27, 1909, and two pleas to it were filed by the
railroad company which pleas were met with demurrers. One
plea was to the whole of the first count, setting up the
statute of limitations of one year, on the idea that the
amended declaration set up a new cause of action, barred
within one year, and the other special plea, setting up the
bar of one year as to all delayage charges accruing prior to
September 28, 1906. The court below ruled that a new cause of
action was not set up by the amended declaration, but that it
simply separated into counts the two causes set up by the
original...
