Loomis v. Lehigh Valley R. Co.

• Decision Date: 29 April 1913
• Citation: 208 N.Y. 312,101 N.E. 907
• Parties: LOOMIS et al. v. LEHIGH VALLEY R. CO.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 312

101 N.E. 907

LOOMIS et al.

v.LEHIGH VALLEY R. CO.

Court of Appeals of New York.

April 29, 1913.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Leslie G. Loomis and another against the Lehigh Valley Railroad Company. From an order of the Appellate Division (147 App. Div. 195,132 N. Y. Supp. 138) overruling defendant's exception heard by that court in the first instance, and from a judgment entered pursuant to such order, plaintiffs appeal. Judgment reduced, and as thus modified affirmed.

The action was brought to recover the cost of lumber wich the plaintiffs, as shippers of produce over defendant's railroad, bought and used for the purpose of making certain freight cars furnished by the defendant suitable for such shipments. At the Trial Term the court directed a verdict for the amount of the plaintiffs' claim, and denied defendant's motion for the direction of a verdict in its favor. The exceptions to these rulings were ordered heard at the Appellate Division in the first instance, where they were overruled, and the present appeal is from the judgment entered upon that disposition of the case.

The plaintiffs are copartners in the business of buying, selling, and shipping grain, apples, potatoes, onions, cabbage, and other farm products and their principal office is at Victor, N. Y. The defendant is a railroad corporation, organized under the laws of the state of Pennsylvania, and is a common carrier which solicits and accepts such products for transportation over its road from its stations at Victor, Farmington, Stanley, Mendon, Henrietta, East Rush, Cedar Swamps, Rochester Junction, Clifton Springs, North Le Roy, and other places in the state of New York to other opints in the United States, both within and without the state of New York. The plaintiffs buy the grain and produce from farmers who draw it to the railroad stations in their respective localities, where it is loaded into box cars for shipment in bulk. In order to load such cars to the minimum capacity upon which the freight rates are based, and the maximum to which the shipper is entitled, it is necessary that they should be equipped with grain doors or bulkheads. Grain doors consist of boards cut to the proper length for nailing on the inside of the cars at the regular doors, which are on the sides of the cars midway between the ends. The regular car doors are either of the sliding or swinging type, and the purpose of the grain doors in either case is to permit the loading of the cars to their proper capacity, to safely contain the load, ant to enable the unloading to be done without unnecessary waste or inconvenience. These grain doors are sometimes called bin doors, and that characterization at once explains their use. The loading of grain and produce in bulk begins at the two ends of the cars, and as the accumulating volume seeks a level which brings it to the open doors, the bin boards are attached one after another as the load increases until the proper height is reached. Thus the produce is kept from leaking in transit, and saved from waste during the process of loading and unloading. Bulkheads served the same purpose, the only difference being that in their use the two ends of the cars are converted into two separate bins. In that case the bin boards, instead of being nailed lengthwise of the cars to close the door openings, are placed transversely of the cars on either side of these openings so as to leave a passage between them.

For many years prior to 1906 it had been the custom of the defendant to furnish cars fitted with grain doors for the shipment of produce in bulk, or the lumber from which the shipper could make grain doors or bulkheads, and for this purpose lumber had been placed from time to time at the various stations where the shipper could help himself to what he needed. The same custom prevailed on other railroads in various parts of the country.

From August, 1906, to May, 1908, the plaintiffs continued, as before, to bring to the defendant for transportation carload lots of produce to be sent in bulk, which the defendant continued to receive, but for which it neglected and refused either to furnish cars fitted with grain doors or bulkheads or the lumber wherewith to construct the same, although the plaintiffs demanded proper cars for the protection and transportation of their shipments. Upon the defendant's refusal to comply with these demands, the plaintiffs bought and used the necessary lumber to construct the grain doors and bulkheads in the various cars which are enumerated in Schedule A annexed to the complaint. The sums thus expended averaged $1.60 per car and amounted to a total of $322.07, for which the plaintiffs presented to the defendant a statement with demand of payment, which was refused. Thereupon this action was brought, with the result above stated.

None of the facts essential to the plaintiffs' alleged cause of action are controverted either in the defendant's answer or in the evidence. The defendant relies upon the assertion (1) that it was under no common-law duty to furnish to the plaintiffs cars equipped with grain doors, bin doors, or bulkheads, and (2) that even if such a duty had ever existed, it had been abolished by the provisions of the Interstate Commerce Act of February 4, 1887, c. 104, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), and the Elkins Act of February 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1911, p. 1309), and the Public Service Commissions Act of the state of New York (L. 1907, ch. 429), pursuant to which the defendant had filed tariffs of rates which contained no provision for payments or allowances to shippers for grain doors, bin doors, or bulkheads placed in cars by them.

The particular sections of the Public Service Commissions Act of the state of New York (L. 1907, ch. 429) upon which the defendant relies are sections 28, 33, and 49, of which we shall quote only the pertinent parts.

Section 28 provides for the filing and publication of tariff schedules which shall set forth, among other things, ‘the places between which property and passengers will be carried, and shall also contain the classification of passengers or property in force, and shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require to be stated, all privileges or facilities granted or allowed, and any rules or regulations which may in any wise change, affect or determine any part, or the aggregate of, such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee.’

Section 31 provides: ‘No common carrier shall, directly or indirectly, by any special rate, rebate, drawback, or other device or method, charge, demand, collect or receive from any person or corporation a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property, except as authorized in this chapter, than it charges, demands, collects or receives from any other person or corporation for doing a like and contemporaneous service in the transportation of a like kind of traffic under the same or substantially similar circumstances and conditions.’

Section 33 directs that: ‘No common carrier shall charge, demand, collect or receive a greater or less or different compensation for transportation of passengers or property, or for any service in connection therewith, than the rates, fares and charges applicable to such transportation as specified in its schedules filed and in effect at the time; nor shall any such carrier refund or remit in any manner or by any device any portion of the rates, fares, or charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property except such as are regularly and uniformly extended to all persons and corporations under like circumstances.’

Section 49 declares: ‘Whenever either commission shall be of opinion, after a hearing had upon its own motion or upon a complaint, that the rates, fares or charges demanded, exacted, charged or collected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction for the transportation of persons or property within the state, or that the regulations or practices of such common carrier, railroad corporation or street railroad corporation affecting such rates are unjust, unreasonable, unjustly discriminatory or unduly preferential, or in any wise in violation of any provision of law, * * * the commission shall * * * determine the just and reasonable rates, fares and charges * * * to be charged. * * * Whenever the commission shall be of opinion, after a hearing, had upon its own motion or upon complaint, that the regulations, practices, equipment, appliances, or service of any such common carrier, railroad corporation or street railroad corporation in respect to transportation of persons or property within the state are unjust, unreasonable, unsafe, improper or inadequate, the commission shall determine the just, reasonable, safe, adequate and proper regulations, practices, equipment, appliances and service thereafter to be in force.’

The foregoing excerpts from the Public Service Commissions Law of this state are, of course, germane only to the intrastate shipments made by plaintiffs over the defendant's road; and of such shipments there are only 29 as against 172 interstate shipments, to which the provisions of the Interstate Commerce Act are applicable.

The various parts of the Interstate Commerce Act, and its amendments, which bear upon the contentions of the parties with reference to interstate shipments, are section 1, par. 1, which provides: ‘That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of...