E. R. Darlington Lumber Co. v. Missouri Pac. Ry. Co.

• Decision Date: 25 February 1909
• Citation: 116 S.W. 530,216 Mo. 658
• Parties: E. R. DARLINGTON LUMBER CO. v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

116 S.W. 530

216 Mo. 658

E. R. DARLINGTON LUMBER CO. v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

1. CONSTITUTIONAL LAW (§ 48)—VALIDITY OF STATUTES—CONSTRUCTION IN FAVOR OF VALIDITY.

If a statute is open to two constructions, one of which renders it unconstitutional and the other does not, the latter construction should be adopted.

2. STATUTES (§ 181)—CONSTRUCTION—LEGISLATIVE INTENT.

The legislative intent should be sought when the meaning of a statute is doubtful, and, as it cannot be assumed that the Legislature intended an unreasonable or absurd construction, a construction consonant with common sense and reason should be adopted.

3. STATUTES (§ 224)—CONSTRUCTION—COGNATE STATUTES.

Where the meaning of a statute becomes doubtful from the provisions of cognate statutes, such statutes must be construed with it in determining its meaning.

4. CARRIERS (§ 100)—CARRIAGE OF GOODS— STATUTORY REGULATIONS—CONSTRUCTION— DEMURRAGE—"CAPACITY."

Demurrage Act, April 12, 1905 (Laws 1905, p. 110, § 5 [Ann. St. 1906, § 1082-5]), gives shippers or consignees 48 hours for loading or unloading cars of less than 60,000 pounds capacity, and 72 hours for cars of 60,000 pounds or greater capacity, and imposes a demurrage of not more than $1 per car per day on all cars not tendered to the company within those periods. Rev. St. 1899, § 1193 (Ann. St. 1906, p. 1005), providing a classification for freight, was enacted and became effective the same time as the demurrage law, and places lumber, laths, etc., in class G, and section 1194, Rev. St. 1899, as amended by Sess. Acts 1905, p. 102 (Ann. St. 1906, p. 1005), fixes a rate for freight in class G in car load lots of 30,000 pounds minimum weight, not exceeding five cents per 100 pounds for the first 25 miles, one-half cent per 100 pounds for the second 25 miles, etc. Held, construing the demurrage act in connection with the maximum freight rate statute, that the word "capacity" in the demurrage act did not refer to the estimated carrying capacity of the car, but to the weight of the load, so that the consignee of lumber weighing less than 60,000 pounds in a 60,000 pound capacity car, would be entitled to only 48 hours' free time in which to unload.

5. CONSTITUTIONAL LAW (§ 297)—DUE PROCESS OF LAW.

If section 5 of the demurrage act (Laws 1905, p. 110 [Ann. St. 1906, § 1082-5]) should be construed to give 72 hours' free time for unloading merely because the estimated capacity of the car was 60,000 pounds or more, without reference to the weight of the load it contained, it would violate both the state and federal Constitutions, in that it would deprive the railroad of its property right to use its cars.

6. CARRIERS (§ 40)—CARRIAGE OF GOODS— DUTY TO FURNISH CARS.

Independent of statute, a railroad is under a legal duty to furnish freight cars to shippers when requested.

7. REPLEVIN (§ 63)—GOODS IN HANDS OF CARRIER—FAILURE TO PAY DEMURRAGE— PLEADING.

In replevin against a carrier for freight which it refused to deliver on tender of demurrage, the carrier, in the absence of statute fixing demurrage, should allege, that the amount tendered was not reasonable, or, if it relied upon any federal regulation fixing demurrage charges, should allege such regulation, and that the amount tendered was insufficient thereunder.

8. CONSTITUTIONAL LAW (§ 46)—RAISING CONSTITUTIONAL QUESTION—SUFFICIENCY OF PLEADING.

In an action against a carrier to recover freight which the carrier refused to deliver on tender of demurrage charges, where the answer, while not pleading the demurrage act by name as a defense, in effect pleaded the act by alleging the notice required thereby, and demanding the amount of demurrage to which it was entitled thereunder, it did not raise the question of the constitutionality of the demurrage act as to interstate shipments.

9. CONSTITUTIONAL LAW(§ 46)—DETERMINATION OF CONSTITUTIONAL QUESTION—NECESSITY.

Where, in replevin against a carrier for a car load of freight which defendant refused to deliver on tender of demurrage, though the answer alleged that the demurrage act violated the interstate commerce law, it did not allege that the amount tendered was not a reasonable demurrage charge, whether the demurrage act violated the interstate commerce law need not be considered.

Appeal from St. Louis Circuit Court.

Action by the E. R. Darlington Lumber Company against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

Martin L. Clardy and Henry G. Herbel, for appellant. Geo. V. Reynolds, for respondent.

GRAVES, J.

Plaintiff, a manufacturing business corporation under the laws of Missouri, brings this action in replevin to recover from defendant, a railway corporation under the laws of Missouri, the possession of certain specifically described lumber of the alleged aggregate value of $1,037.50, and contained in four cars specifically described in the petition. In the complaint it is not only alleged that the defendant had wrongfully detained said lumber, but that said detention is wrongful, malicious, willful, and oppressive, and judgment is asked for the recovery of said lumber, together with $1,000 for the wrongful detention thereof, and also for $3,000 punitive damages and costs. By answer the defendant first specifically denied that it had or at the institution of the suit was wrongfully detaining said lumber, but pleaded the facts as to the detention of the lumber by it. The answer then pleads the facts specifically as to each car load of the lumber. Two of the cars were intrastate shipments, and two of them interstate shipments.

As to the first car in question, the answer says: "Now comes said defendant, and for its second amended answer, by leave of court filed to the petition in the above-entitled cause, denies that at the time this suit was instituted, or at any time, it wrongfully detained from plaintiff any of the lumber described in said petition; avers that it is a common carrier of freight for hire in the city of St. Louis, and state of Missouri, and is also engaged in switching cars containing freight delivered to it by connecting common carriers at St. Louis, Mo., for delivery to consignees thereof on private switch tracks connecting industries, located on or near its tracks, such as plaintiff's; that on the 17th day of June, 1905, it received at St. Louis, Mo., for delivery to plaintiff on its private switch track in its lumber yards in said city. at Chouteau and Vandeventer avenues, from the Terminal Railroad Association of St. Louis, a connecting common carrier, a car load of yellow pine lumber in car No. 18,894, St. Louis & Southwestern Railroad, which had been shipped to plaintiff by the consignor thereof from Pineville, La., a station on the Louisville Railway & Navigation Company's railway, which said car had a capacity of 60,000 pounds, and the lumber therein weighed 45,000 pounds; that on receipt of said car loaded with lumber, from the Terminal Railroad Association of St. Louis as aforesaid, this defendant served a written notice on the plaintiff herein in the city of St. Louis, on the 17th day of June, 1905, and before 5 o'clock p. m. of said day, informing said plaintiff that said car of lumber was on hand in its yards at St. Louis, and was ready to be delivered to plaintiff at that time for unloading, or other disposition, and that at said time the switch track in plaintiff's yard aforesaid was occupied by other cars, so that a delivery of said car to plaintiff, on said track, at that time, could not be effected by defendant, and that unless directions for disposition of said car were given by plaintiff to this defendant within 48 hours after 7 a. m. of June 21, 1905, a demurrage charge of $1 per day, or fraction of a day, would be assessed and charged against said plaintiff by this defendant for the detention and use of said car by plaintiff; that it was unable to place said car on plaintiff's said switch track on account of said track being occupied by other cars consigned to plaintiff from the time said notice was given to plaintiff until July 1, 1905, when plaintiff requested defendant to place said car on said switch, and tendered to it $9, being for 9 days, at the rate of $1 per day, for the demurrage charges accrued thereon from 7 a. m., June 21, 1905, to July 1, 1905, inclusive, on a basis of 72 hours' free time; that defendant refused to accept said $9 in full payment and satisfaction of the demurrage charges that had accrued on said car, and deliver said car to plaintiff, because it claimed that there were 10 days' demurrage charges due it on said car at the rate of $1 per day from said 7 a. m., June 21, 1905, to July 1, 1905, inclusive, on the basis of 48 hours' free time, under its rules and the laws of the state of Missouri then in force; that plaintiff refused to pay said demurrage charges to defendant, and defendant refused to deliver said car to plaintiff until said demurrage charges were paid, and said car remained in the possession of defendant until taken out of its possession on July 11, 1905, by the sheriff of the city of St. Louis, in pursuance of the order of delivery issued by this honorable court in this case; that from the 1st day of July to said 11th day of July, 1905, there had accrued on said car, demurrage charges of $7, being for 7 days at the rate of $1 per day, which plaintiff also refused to pay defendant."

We shall omit what is said of the other three cars, for the same questions of facts are pleaded, and the same laws invoked. That is to say, for all practical purposes the allegations may be said to be the same. Such differences as may occur to be necessary will be noted later if required.

The answer then thus concludes: "For further answer and defense herein defendant says sections 5 and 6 of the act of the General Assembly of the state of Missouri, entitled `An act to...