The Udall Milling Company v. The Atchison

• Decision Date: 09 April 1910
• Docket Number: 16,454
• Citation: 82 Kan. 256,108 P. 137
• Court: Kansas Supreme Court
• Parties: THE UDALL MILLING COMPANY, a Partnership, etc., Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

108 P. 137

82 Kan. 256

THE UDALL MILLING COMPANY, a Partnership, etc., Appellees, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant

No. 16,454

Supreme Court of Kansas

April 9, 1910

Decided January, 1910.

Appeal from Cowley district court; CARROLL L. SWARTS, judge.

STATEMENT.

THIS action was brought to recover amounts alleged to have been forfeited by the failure of the railway company to furnish cars demanded by the Udall Milling Company for the shipping of freight between Udall and other points in Kansas. In their petition the milling company alleged that they had made eight different applications for cars, which the railway company did not furnish. Based on these refusals, they set forth eight counts in their petition. A demurrer was sustained as to the first, second, seventh and eighth counts, and the case went to trial upon the third, fourth, fifth and sixth counts. In the third count, among other things, it was alleged that on December 29, 1906, a written demand was made for three box cars, each of 60,000 pounds capacity, for immediate delivery at Udall, to be loaded with grain for Winfield, and that plaintiffs paid the railway company $ 22.50, being one-fourth of the freight charged for the cars ordered, and the agent of the company gave them a receipt for that amount stating the purpose for which the receipt was given. It was then alleged that no cars were delivered under the order until February 7 1907, being a delay of thirty-six days. At that time one car was delivered, another was delivered on the following day and the third on February 20, 1907, being a delay of forty-nine days on the last car. It was alleged that by reason of these refusals and delay there was a forfeiture of $ 121, for which judgment was asked. The remaining three counts were similar to the third, except as to the time of demand for cars and the extent of the delay in furnishing them. In addition to a general denial, and a plea that the third cause of action was barred by the statute of limitations, the railway company alleged:

"That at the various times alleged there was a great congestion and increase of traffic on the line of defendant's railroad which was not and could not reasonably have been anticipated on the part of the defendant. By reason of such increase and congestion of traffic at the times alleged in the petition it became impossible and impracticable for the defendant to furnish cars and equipment in sufficient number to handle with promptness all the traffic offered to it. The defendant railway company operates many thousand miles of railroad in this and other states, and that the increase and congestion of traffic aforesaid was general over the entire system of railroad operated by defendant. Said increase and congestion of traffic were not confined to the railway system operated by the defendant, but that such condition applied generally to the railroads of the United States, and that by reason thereof it was, at the time alleged in said petition impossible for defendant to procure cars and engines from other railroad companies, by means whereof it might provide for the traffic on its own line, and that by reason of such increase and congestion of traffic, when cars for through shipments were turned over to other railroads, it became and was impossible for the defendant to secure a prompt return of the cars and equipment to its own line so as to furnish a prompt service to its own patrons. That long prior to the times alleged in the petition of the plaintiffs, and up to and including said times, the defendant company had sought to secure the purchase and building of cars and equipment, so as to meet every possible requirement, from the various companies engaged in the manufacture and sale of cars and equipment, but that owing to the general increase in traffic and the general demand for cars and equipment it became impossible for it to secure from such companies engaged in the manufacture and sale of cars a sufficient supply of such cars and equipment to meet the full requirements of its traffic. That in so far as it was able, having due regard for the requirements of shippers on other parts of its line and system, defendant furnished plaintiffs and all other shippers their due and proportionate share of cars and equipment. The aforesaid increase and congestion of traffic were due in part to unprecedented crops and to an unusual and unforeseen increase in manufactures and in mining which defendant could not have reasonably anticipated. Prior and up to the time of the aforesaid increase and congestion of traffic, defendant had sufficient cars and equipment to meet the ordinary and usual requirements of its business."

There were averments, too, that under the laws of the United States and of the state the railway company is not permitted to discriminate between shippers, and to have furnished the cars upon the demand of the milling company would have resulted in a discrimination against other patrons of the road. It was also alleged that the reciprocal demurrage act, under which the applications were made, violates the laws and the constitution of the United States so far as it relates to interstate shipments. A trial was had, in which evidence tending to support the allegations of the petition was given. A demurrer to the evidence of the milling company was overruled. The railway company then introduced testimony tending to support the allegations which it had made by way of excusing it from furnishing the cars demanded, and to show that conditions existed which made the provisions of the reciprocal demurrage act inapplicable to the case. The verdict and judgment were in favor of the milling company, and the railway company has appealed.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS -- Delay in Furnishing Cars Applied for -- Penalties -- Limitation of Actions. The reciprocal demurrage act, among other things, provides that when a shipper applies to a railway company for cars they must be furnished within a specified time, and that if the railway company fails to furnish them within that time it shall forfeit $ 1 per day for each car it fails to furnish. Held: (1) In an action brought to recover penalties under that act, the one-year statute of limitations applies. (2) For each day of neglect after the prescribed time a penalty of $ 1 per car was at once incurred, on which the statute of limitations began to run. Each penalty was a distinct liability, and when the statute was set in motion on such a liability it continued to run until the action was commenced or barred. (3) The subsequent furnishing by the railway company of the cars demanded stopped the accumulation of penalties, but did not arrest the running of the statute as to penalties already incurred.

2. RAILROADS -- Duty to Provide Equipment and Cars -- Noncompliance with Statute Excused by Unavoidable Accident. It is the duty of a railway company to provide such equipment and cars as will meet not only the ordinary and usual requirements of the traffic but also provide for such increase of business and demands for cars as can reasonably be anticipated. If, however, there is a rush of business or a congestion of traffic which could not reasonably have been anticipated, and there is a delay arising from circumstances beyond the control of the railway company, it will be deemed to be abnormal and such an unavoidable accident as will excuse noncompliance with the demand for cars and relieve the company from the penalties provided for in the act.

William R. Smith, O. J. Wood, and Alfred A. Scott, for the appellant.

A. M. Jackson, and A. L. Noble, for the appellees.

OPINION

JOHNSTON, C. J.:

The first question arising on the appeal is whether the third cause of action stated in the petition was barred by the statute of limitations. It arises under the reciprocal demurrage act, which provides that if the application of the shipper be for ten cars or less the railway company must furnish them within three days from the time of demand, and that a railway company failing to furnish them within that time shall forfeit $ 1 per day for each car it fails to furnish. (Laws 1905, ch. 345; Gen. Stat. 1909, § 7200 et seq.) In this case the application for cars was made on December 29, 1906, and hence on January 2, 1907, the railway company was in default. As the liability was a forfeiture imposed by statute, the one-year limitation provided for in subdivision 4 of section 17 of the civil code applies. (Joyce v. Means, 41 Kan. 234, 20 P. 853; Beadle v. K. C. Ft. S. & M. Rld. Co., 48 Kan 379; Wey v. Schofield, 53 Kan. 248, 36 P. 333.) For the first day of neglect to furnish cars, beginning January 2, 1907, the railway company became liable for a penalty of a dollar on each car, and for every successive day thereafter...