Chicago & Northwestern Railway Co. v. Menasha Paper Co. , 159 Wis. 508 ( 1915 )

The following opinion was filed December 8, 1914:

KebwiN, J.

The findings of the learned referee, confirmed by the court and sustained by the evidence, support the judgment. The appellant contends that section 0, rule 5, hereafter quoted, is controlling. Under this rule it is insisted that it was the duty of respondent to keep the track of appellant full and that it would accommodate seven cars, and that only three or four, and never to exceed five, cars were kept thereon, hence no demurrage could have been charged under the rule referred to. We are of opinion that the referee properly .construed the rule as applied to the facts in this case in holding that the track was full to its capacity when demurrage was charged. The rule must have a reasonable construction; and it appears from the evidence that while seven cars could be placed upon the track at one time, not to exceed five could be placed there so as to make its use for unloading practicable, and this situation was well understood by the parties and ears placed as required accordingly. So it is clear that the track was kept full within the meaning of the rule.

In the instant case the cars held and upon which demurrage was charged reached destination at Menasha and were held at Snells siding for convenience awaiting orders, and the appellant ordered only so many cars as it could unload from day to day. It appears that the'appellant did not order any more cars placed on its track than were placed thereon, but it is claimed that it was the duty of respondent to place and keep the track full with seven cars whether such condition interfered with unloading or not, and if the track was not kept full no demurrage could be charged.

The construction placed upon the rule by both parties, viz. that the track was full when the number of cars which could be handled there were upon it, was the sensible and practical construction. The respondent was not obliged to do a vain and useless thing by putting seven cars upon the track at one time and thus prevent the practical handling or unloading of any cars thereon by appellant contrary to its orders. The referee and court below found upon sufficient evidence that while the appellant’s sidetrack from which cars were unloaded could accommodate about seven cars, it had an actual capacity as used during the time in question of only three or four cars, or possibly five; that as defendant used the sidetrack more cars could not have been placed upon it and unloaded than were actually placed upon it and unloaded during the time in question, to wit, about two or three cars a day.

Appellant complains of a so-called raising of an alleged embargo without notice. The court below and the referee held the embargo illegal, against public policy, and void. It appears from the evidence that appellant demanded of respondent that it issue an embargo refusing to give to shippers cars for bolts consigned to appellant at Menasha and respondent did so. The order reads as follows: “On account of accumulation, you will, until further advised, discontinuo to furnish equipment to load with bolts consigned to Menasha Paper Company. Please be governed accordingly.” It is clear that the so-called embargo as laid and operated by direction of appellant granted special privileges and was contrary to law, therefore was raised by the respondent so as to avoid liability for discrimination as between shippers. Both the federal law and the state statutes provide against discrimination or special privileges; and the so-called embargo in question was in contravention of law. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648; St. Louis, I. M. & S. R. Co. v. Edwards, 227 U. S. 265, 33 Sup. Ct. 262; Michie v. N. Y., N. H. & H. R. Co. 151 Fed. 694; U. S. v. P. & R. R. Co. 184 Fed. 543; Blinn L. Co. v. S. P. R. Co. 18 Int. Comm. Comm. Rep. 430; Armour P. Co. v. U. S. 209 U. S. 56, 28 Sup. Ct. 428; Chicago, R. I. & P. R. Co. v. Hardwick F. E. Co. 226 U. S. 426, 33 Sup. Ct. 174; Hepburn Act of June 29, 1906 (34 U. S. Stats, at Large, 584, ch. 3591) ; secs. 1797— 4, 1797 — 10, 1797 — 22, 1797 — 24, Wis. Stats.

It is claimed by appellant that because some of the cars, after reaching destination at Menasha, were carried beyond to the nearest sidetrack and there held until the accumulation in the yards ceased, then moved back to Menasha, the cars were not held at destination, hence no demurrage could be charged, and rests on U. S. v. D. & R. G. R. Co. 18 Int. Comm. Comm. Rep. 7, in support of this position. That case is not controlling here. An examination of it will show that the commission in treating the case found no rule similar to rules of the respondent which control the instant case, copies of which are attached to the complaint, and the case relied upon by appellant is based upon a rule in force at the time the de-murrage accrued, therefore governed the case. But after-wards provision was made for a case similar to the one before the commission and which was in force when the case above referred to was tried, but not applicable because the demur-rage accrued before such rule went into effect. In referring to this subject in U. S. v. D. & R. G. R. Co., supra, the commission said, page 10:

“If the provisions subsequently inserted and now appearing in defendant’s tariff had been in force at the time, demurrage would have accrued on cars held at Thistle Junction by direction of complainant. We rest our decision of this case on the proposition that demurrage can be assessed only in accordance with tariff provisions, and that the rules of the Utah Oar Service Association in effect when these cars were delivered did not authorize the demurrage charges in question.”

In the case at bar the cars reached destination and notice of their arrival was given by respondent and the cars were thereafter held awaiting orders. The rules in force at the time in question clearly cover thé instant case and justify the demurrage charges on any theory of the case.

“Rule 4. Cars which are stopped in transit or held by orders of shippers or consignee for reconsignment to points beyond, for change of load, for amended instructions, for change in billing, milling, shelling, cleaning, etc., or on account of improper, unsafe or excessive loading, or for any other reason for which the shipper or consignee is responsible, shall be subject to car service charges after the expiration of forty-eight (48) hours from arrival at the point of stoppage, and all car service must be collected, or billed as advances when cars go forward.”

“Rule 5.

“Section B. Oars for unloading shall be considered placed when such cars are held awaiting orders from consignors or consignees, or for the payment of freight charges after the notice mailed or otherwise given, or for the surrender of bills of lading.

“Section C. The delivery of cars to private tracks shall be considered to have been made, either when such cars have been placed on the tracks designated, or, if such track or tracks be full, when the road offering the cars would have made delivery had the condition of such tracks permitted. . . .”

Complaint is made by appellant that the so-called embargo was raised without notice to it, and that such raising caused the bunching of cars and the delay in unloading. The alleged embargo was placed at the request of the appellant. There was no agreement that notice should be given of its removal and no duty rested upon the respondent to do so.

By the Court. — The judgment is affirmed.

A motion for a rehearing was denied, with $25 costs, on February 9, 1915.-