[Copyrighted Material Omitted]
FROM
the circuit court of Lauderdale county. HON. GUION Q. HALL
Judge.
George
appellee, was plaintiff in the court below; the railroad
company, appellant, was defendant there. The action was
replevin for certain freights consigned to appellee and upon
which the railroad company contended certain demurrage
charges had accrued, and which plaintiff had declined to pay.
The railroad claimed the demurrage under certain rules of the
Alabama Car Service Association, to which it belonged, and of
the Mississippi Railroad Commission. These rules were offered
in evidence and are as follows:
RULES
OF THE ALABAMA CAR SERVICE ASSOCIATION.
"Rule
1. Per diem charges.--All property shipped in carload lots
shall be subject to car service and trackage charges in
accordance with the following regulations: A charge of one
dollar per car per day or fraction thereof shall be made for
the delay of cars and the use of tracks within the following
described territory, after forty-eight hours from arrival
thereat, not including Sundays or legal holidays.
"Rule
2. Rules for reckoning time.-- On cars arriving during the
forenoon after 7 A. M., and held for orders from consignees
car service will be charged after the expiration of
forty-eight hours from 12 M. of that day, and on cars
arriving after 12 M. to and including 7 A. M. of the
following day, car service charges will commence forty-eight
hours from 7 A. M. of the following day, provided
notification has been given during the day previous to this
time. Should notification not be given within the time, car
service will commence forty-eight hours from the hour of
notification. On cars consigned to team tracks, and which may
be so delivered on advance or standing order from consignee,
car service will be charged after the expiration of
forty-eight hours from the time such cars are placed on the
tracks designated.
"Rule
3. Cars for delivery on team tracks and private sidings.--
Cars containing freight to be delivered on team tracks or
private sidings shall be delivered on the track designated
immediately upon arrival, or as soon thereafter as the
ordinary routine of yard-work will permit. (a) The time
consumed in placing such cars, or in switching cars for which
directions are given by consignees, after arrival, shall not
be included when computing detention. (b) The delivery of
cars consigned to or ordered to sidings, used exclusively by
certain firms or individuals located on such sidings, shall
be considered to have been effected either when such cars
have been placed on the sidings designated; or, if such
sidings be full, when the road offering the cars would have
made delivery had such sidings permitted. (c) No cars shall
be held from delivery in any manner, provided it is possible
to secure their delivery, and the manager is charged with the
duty of seeing that the purposes for which this association
is formed are not evaded by the action of any railroad
company. (d) On deliveries to sidings, used exclusively by
certain firms or individuals located on said sidings, and
where consignees or consignors refuse to pay, or
unnecessarily defer settlement of bills for car service
charges, the agent will decline to switch cars to the sidings
where such parties are located, notifying them that
deliveries will only be made to them on the public delivery
tracks of the company after the payment of freight charges at
his office, and will promptly notify the manager of the
action taken."
. . . .
"Rule
9. Collections.--Agents will collect car service charges
accruing under the rules of the association with the same
regularity and promptness as other transportation charges,
and the manager is charged with the duty of seeing that these
rules are enforced without discrimination. (a) It is the duty
of the agent to demand car service on all cars before
delivering them, where service has accrued between
notification and ordering. It is also the duty of the agent,
where he has any doubt about service being paid, to demand
one dollar car service at the end of the free time allowed
for unloading cars; and, if said car service is refused, to
decline to deliver the car and to allow the lading to be
taken from it, either by sealing the car, locking the car,,
or placing it where it is not accessible to consignee. (b)
All collections for car service charges shall belong to the
road upon whose tracks the cars are detained. (c) Railroads
shall not discriminate between persons in car service
charges. If a railroad company collects car service from one
person, under the car service rules, it must collect of all
who are liable."
. . . .
"Rule
12. Storage.-- No railroad company, member of this
association, shall provide free storage in its freight
warehouse of contents of loaded cars subject to car service
charges, but any railroad company may unload cars subject to
car service charges into its own warehouse or into public or
private warehouses subject to the following rules and
regulations: . . . ."
. . . .
RULES
OF THE MISSISSIPPI RAILROAD COMMISSION.
"Rule
1. Railroad companies to give prompt notice of arrival of
goods.-- Railroad companies shall give prompt notice, by mail
or otherwise, to consignee of arrival of goods, together with
weight and amount of freight charges due thereon; and, when
goods or freight of any kind in carload quantities arrive,
said notice must contain letters or initials of the car,
number of the car, net weight and the amount of freight
charges due on the same. Storage and demurrage charges may be
assessed if the goods are not removed in conformity with the
following rules and regulations. No storage or demurrage
charges, however, shall in any case be allowed, unless legal
notice of the arrival of the goods has been given to the
owner or consignee thereof by the railroad company.
"Rule
2. Definition of legal notice.-- Legal notice referred to in
these rules may be either actual or constructive. Where the
consignee is personally served with notice of the arrival of
freight, free time begins at 7 o'clock A. M. on the day
after such notice has been given."
. . . .
"Rule
4. Demurrage on loaded cars -- how assessable.--Loaded cars,
which by consent and agreement between the railroad and
consignee, are to be unloaded by consignee, such as bulk
meat, bulk grain, hay, cotton seed, lumber, lime, coal, coke,
sand, brick, stone and wood, and all cars taking track
delivery, which are not unloaded from cars containing same
within forty-eight (48) hours (not including Sundays or legal
holidays), computed from 7 o'clock A. M. of the day
following the day legal notice of the arrival is given, and
the car or cars are placed accessible for unloading, may be
subject thereafter to a charge of demurrage of one dollar per
car for each day or fraction of a day that said car or cars
remain loaded in the possession of the railroad company; it
being understood that said car or cars are to be placed and
remain accessible to the consignee for the purpose of
unloading during the period in which held free of demurrage;
that when the period of such demurrage charges commences they
are to be placed accessible to the consignee for unloading
purposes on demand of the consignee; provided, however, that
if the railroad company shall remove such car or cars after
being so placed, or in any way obstruct the unloading of the
same, the consignee shall not be chargeable with the delay
caused thereby; provided, further, that when any consignee
shall receive four or more cars during any one day loaded
with lumber, laths, shingles, wood, coal, lime, ore, sand or
bricks, and all ears taking track delivery, the said cars in
excess of three shall not be liable to demurrage by any
railroad company until after the expiration of seventy-two
(72) hours."
. . . .
Plaintiff
was engaged in the wholesale grain and feed business in
Meridian. He handled large numbers of cars of hulls, feed
stuff, grain, and other commodities requiring track delivery.
Some of these cars were unloaded at Meridian, and some
rebilled to other points. For convenience in unloading and
handling freight, George had leased a portion of a warehouse
which was located on a spur track known as the "Compress
Track," the larger part of which was used by the Cotton
Compress Company and other concerns; and, as their warehouses
were situated further up the spur track, all of the ears used
by them had to pass over that portion of the track to the use
of which George was entitled, thus necessitating the
reswitching and replacing of his cars; but the lease to
George was made with full knowledge on his part of this
condition of affairs George's warehouse only had trackage
for four cars. It was the usual course of dealing between
George and the railroad company that the ears were to be set
into his sidetrack on arrival, without special demand, and
the representatives of the Alabama Car Service Association
would check the ears on the track each day to see that there
was no unnecessary delay in the switching and placing of the
cars. The railroad company also had an employe who was
charged with the duty of checking all ears on the track, and
this double checking was recorded in books kept for that
purpose, and the results compared to guard against errors. On
Saturday, December 7, 1901, a train of twelve cars loaded
with cotton seed hulls, loose in bulk, reached Meridian
consigned to George. On arrival this train was placed on the
storage track, appellant contending that was necessary on
account of the crowded condition of the compress track. On
Monday, the 9th, the compress track being still crowded with
cars,...
