New Orleans & N.E.R. Co. v. George

• Decision Date: 16 November 1903
• Citation: New Orleans & N.E.R. Co. v. George, 35 So. 193, 82 Miss. 710 (Miss. 1903)
• Parties: NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY v. ALFRED H. GEORGE
• Court: Mississippi Supreme Court

35 So. 193

82 Miss. 710

NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY v. ALFRED H. GEORGE

Supreme Court of Mississippi

November 16, 1903

[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,...