Van Keulen & Winchester Lumber Co. v. Manistee & N. E. R. Co.

• Decision Date: 27 April 1923
• Docket Number: No. 12.,12.
• Citation: 193 N.W. 289,222 Mich. 682
• Court: Michigan Supreme Court
• Parties: VAN KEULEN & WINCHESTER LUMBER CO. v. MANISTEE & N. E. R. CO. et al.

222 Mich. 682

193 N.W. 289

VAN KEULEN & WINCHESTER LUMBER CO.

v.MANISTEE & N. E. R. CO. et al.

No. 12.

Supreme Court of Michigan.

April 27, 1923.

Error to Circuit Court, Kent County; William B. Brown, Judge.

Action by the Van Keulen & Winchester Lumber Company against the Manistee & Northeastern Railroad Company and James C. Davis, as Director General of Railroads. Judgment for plaintiff, and defendants bring error. Reversed in part, and in part affirmed on condition.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Norris, McPherson, Harrington & Waer, of Grand Rapids (Williams, Shields & Seaton, of Detroit, of counsel), for appellant Davis.

Francis L. Williams, of Grand Rapids, for appellee.

BIRD, J.

Plaintiff is a lumber dealer and has its office in the city of Grand Rapids. On November 4, 1918, it delivered to the defendant Manistee & Northeastern Railroad Company, at Interlochen, two cars of maple lumber cosigned to the Merrimac Wood Heel Company at Haverhill, Mass. The cars were to go via Whitehall and Big Rapids and be stopped at Big Rapids for kiln-drying. Bills of lading were issued to the shipper, and waybills to accompany the cars to their destination were prepared, which showed across the face of each the following instruction:

‘Stop this car at A. L. Dennis Salt & Lumber Company, Big Rapids, Michigan, for kilndrying.’

The cars were moved under these instructions by the Manistee & Northeastern Railroad Company from Interlochen to Kaleva, its junction point with the Pere Marquette Railway, and delivered to it in good order. The waybills were turned over to the Manistee & Northeastern agent at Kaleva by the conductor and by him delivered to the agent of the Pere Marquette, and the agent of the Pere Marquette delivered them to the Pere Marquette conductor. Instead of continuing south on its line to Whitehall, the Pere Marquette stopped the cars at Baldwin, and from there they went east to Saginaw, and did not go through Big Rapids at all. The cars went through on the other lines of railway without incident to their destination. The lumber was kiln-dried after it reached its destination at a considerable increase in expense. Plaintiff sued defendants to recover its damages by reason of the failure to stop the cars at Big Rapids and because of their failure to notify the consignee that the lumber had not been kiln-dried. The case was tried before the trial court without the aid of a jury, and damages were assessed in favor of plaintiff and against both defendants in the sum of $2,173.13. Both defendants assign error.

1. The Manistee & Northeastern Company insist that the proceedings should have been dismissed against it, as it delivered the cars in good order to the Pere Marquette with full instructions indorsed on the waybills. The trial court was of the opinion that the Pere Marquette was responsible for the failure to stop the cars at Big Rapids, but that the manner of billing them contributed to the negligence of the Pere Marquette, and therefore held both roads responsible for the error.

This view of the trial court was induced by the testimony of Mr. Thomas W. Avis, division freight agent of the Pere Marquette Railway. He suggested in his testimony that the cars were not properly billed by the Manistee & Northeastern agent; that they should have been billed direct to Big Rapids, with no notation as to Haverhill, Mass. The freight charges from Interlochen to Big Rapids should then have been paid, and the receipt deposited with the agent at Big Rapids. After the lumber was dried and ready to be forwarded, the agent at Big Rapids would have billed them from point of origin to destination at the through rate. The trial court concluded if this were the way prescribed by the tariffs on file, and that the Manistee & Northeastern Railroad did not conform thereto, it was in some degree responsible for the error.

The testimony shows that the through rate and stop-over privilege at Big Rapids was accorded to shippers, and it was a practice that the agents and train operatives were familiar with. The notation on the waybill was ample notice to the Pere Marquette agent at Kaleva that the car was to be stopped at Big Rapids. It was ample notice to the conductor who took the cars from Kaleva to Baldwin, and it was like notice to the conductor who handled the cars between Baldwin and Saginaw; but none of them heeded it. But it is said the through billing with a stop-over was not in accordance with the rule of the tariffs on file. We are not informed as to that fact, as we find no tariff sheet in the record. There was some oral proof as to the written tariff; but this testimony was disputed by one of plaintiff's witnesses, who testified that...