208 Mich. 424 | Mich. | 1919
Plaintiff is a logger and in 1916 and 1917 owned timber lands near a branch of defendant’s railroad called in the record the “White Pine Branch” and the “White Pine Extension.” Intending to operate during the winter season on this property he made known to defendant’s agent his requirement for cars during the season. It is his claim that the cars were not furnished in the number requested and needed; that he was required to bank a large number of his logs, many were left on the ground and were rendered valueless, and that by reason of the failure of the defendant to furnish him cars he has suffered damage for the recovery of which this action was brought. He counts in his declaration on the failure of defendant to furnish the cars and upon unjust discrimination of the defendant in apportioning cars among the shippers in that locality. Such further detail as may be necessary to a full understanding of the case will be stated as we proceed.
Plaintiff’s shipments were interstate. By appropriate objections at the beginning of the trial and motions for a directed verdict defendant raised the question of jurisdiction of the court to hear and determine the controversy. As this question challenges the juris
The power of congress to regulate interstate commerce is beyond question. Has it by the legislation regulating such commerce, withdrawn or attempted to withdraw from the State courts jurisdiction to adjudicate such controversies as are here involved? Has it committed to the interstate commerce commission the determination of such controversies as here presented? Are the questions here involved of an administrative character to be solved only by an administrative board? These are the questions, which present themselves at the threshold of this inquiry, and to them we must first address ourselves.
By the act of February 4, 1887, entitled, “An act to regulate commerce” (24 U. S. Stat. p. 379), the interstate commerce commission was created. . By this act and amendments to it (see 25 U. S. Stat. p. 855; 28 U. S. Stat. p. 643; 32 U. S. Stat. p. 847; 34 U. S. Stat. p. 584), comprehensive provisions have been enacted in the regulation of interstate commerce and broad powers have been conferred upon the commission, powers of an administrative and qitcm-judicial character. In the original act, and it has continued
“And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”
In the leading case of Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075), the court had before it for review the decision of the court of last resort of Texas on the question. The Abilene company had brought suit in the State court against the railway company, alleging that the railway company had exacted an unjust and unreasonable rate for certain interstate shipments; there was also an allegation that the rate exacted was discriminatory. The railway company defended principally on the ground that the State court was without jurisdiction, that the interstate commerce commission must be first applied to, as the questions involved had been committed to that body by the act to regulate commerce. A judgment for the oil company in the trial court had been affirmed by the court of civil appeals. In an exhaustive opinion by the present Chief Justice, then Mr. Justice White, the legislation and authorities were reviewed and the functions of the commission and of the courts and the jurisdiction of both were fully considered, and it was held that the courts were without jurisdiction where the character of the question was as there involved until after the commission had acted; that the questions were administrative, the rate-making power was not in the judiciary, and that congress acting within its power had committed the determination of such administrative questions to an administrative body to the exclusion of the courts, and the judgment was reversed. This case was followed, and the reasoning of the opinion applied and extended in the later decisions of that court. Among
This naturally leads us to consider whether the questions here involved are administrative in character such as to preclude the State court from inquiring into and adjudicating them without application having been first made to the commission. And first as to the failure to furnish sufficient cars. By the Hepburn act (34 U. S. Stat. p. 584), an amendatory act to the act of 1887, it is provided:
“And it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto.”
This was but declaratory of the common law. In the case of Pennsylvania R. Co. v. Sonman Coal Co.,
“Applying these rulings to the case in hand, we are of opinion that a State court could entertain the action consistently with the interstate commerce act. Not only does the provision in section 22 make strongly for this conclusion, but a survey of the scheme of the act and of what it is intended to accomplish discloses no real support for the opposing view. With the charge of unjust discrimination eliminated, the ground upon which a recovery was sought was that for a period of four years, during which the conditions were normal, the carrier had failed upon reasonable demand to supply a shipper in interstate commerce a sufficient number of cars to transport the output of the latter’s coal mine. Assuming that the conditions were normal and the demand reasonable, it was the duty of the carrier to have furnished the cars. That duty arose from the common law up to the date of the amendatory statute of 1906, known as the Hepburn act, and thereafter from a provision in that act which, for present purposes, may be regarded as merely adopting the common-law rule. There was evidence tending to show, and the jury found, that the conditions in the coal*431 trade were normal and the demand for the cars reasonable. Indeed, without objection from the carrier, the court said when charging the jury: ‘There is no testimony disputing the claim of the plaintiff that these were normal times.’ The carrier insisted and the jury found that the carrier had a generally ample car supply for the needs of the coal traffic under normal conditions, and' the jury further found that the failure to furnish the cars demanded was without justifiable excuse. Thus far it is apparent that no administrative question was involved — nothing which the act intends shall be passed upon by the commission either to the exclusion of the courts or as a necessary condition to judicial action.
“But there was testimony tending to show that the carrier was applying or following a rule for allotting cars which did not entitle the coal company to receive as many cars as it needed and requested, and because of this it is contended that the reasonableness of this rule was in issue and was an administrative question which the act intends that the commission shall solve. We cannot accede to the contention. The conditions in the coal trade being normal, as just shown,_ the number of cars to which the coal company was entitled was to be measured by its reasonable requests based upon its actual needs. It is only in times of car shortage resulting from unusual demands, or other abnormal conditions, not reasonably to have been foreseen, that car distribution rules originating with the carrier can be regarded as qualifying or affecting the right of a shipper to demand and receive cars commensurate in number with his needs. Pennsylvania R. Co. v. Puritan Coal Co., 237 U. S. 121, 133. Such a rule being inapplicable in the conditions existing at the time, the rule mentioned in the testimony could not be a factor in the decision of the case, and whether in a time of unforeseen car shortage it would be reasonable or otherwise was not then material.”
Let us consider now the question of unjust discrimination. As before, we should turn to the decisions of the court of final resort when Federal questions are involved. In the ease of Pennsylvania R. Co. v. Puritan Coal Co., 237 U. S. 121 (35 Sup. Ct. Rep.
“But sections 8 and 9 standing alone might have been construed to give the Federal courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which were preserved and the new obligations which were imposed by the commerce act. And, evidently, for the purpose of preventing such a result, the proviso to section 22 declared that ‘nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of -this act are in addition to such remedies.’
“That proviso, was added at the end of the statute, —not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, — but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a State court, recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common law duties and the like. But for this proviso to section 22 it might have been claimed that, congress having entered the field, the whole subject of liability of a carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the State courts and this clause was added to indicate that the commerce act, in giving rights of action in Federal courts, was not intended to deprive the State courts of their general and concurrent jurisdiction. * * *
*433 “There are several decisions, already cited, which hold that suits against railroads for unjust discrimination in interstate commerce can only be brought in the Federal courts. But it must be borne in mind that there are two forms of discrimination — one in the rule and the other in the manner of its enforcement; one in promulgating a discriminatory rule, the other in the unfair enforcement of a reasonable rule. In a suit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has been vested by congress in the commission. It is for that body to say whether such a rule unjustly discriminates against one class of shippers in favor of another. Until that body has declared the practice to be discriminatory and unjust no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. When the commission has declared, the rule to be unjust, redress must be sought before the commission or in the United States courts of competent jurisdiction as provided in section 9.
“But if the carrier’s rule, fair on its face, has been unequally applied and thd suit is for damages, occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the State or Federal courts.”
Sustaining the views expressed in these cases will be found the following: Eastern Railway Co. v. Littlefield, 237 U. S. 140 (35 Sup. Ct. Rep, 489); Illinois Cent. R. Co. v. Mulberry Coal Co., 238 U. S. 275 (35 Sup. Ct. Rep. 760).
The cases clearly and unmistakably lay down the rule that when the action is for damages due to the carrier’s failure to furnish cars when reasonably demanded, the shipper may proceed in the State court; that when the action is for damages occasioned by
But counsel for the defendant insist that plaintiff failed to make a case under either of the claims asserted and that the court for this reason should have directed a verdict. This contention requires us to again refer to the facts and to more fully state them. And first as to the failure to furnish cars. The plaintiff testified that he made a seasonable request of the agent of defendant for eight cars daily, and that he was not furnished them. It is not necessary for us to determine whether this proof alone made a prima facie case, as he further testified that for several years defendant had been short of cars to meet his demands, in addition to his testimony, the testimony of the superintendent of transportation of defendant is to the effect that in normal years the division in which these logging operations were being conducted required from 1,400 to 1,500 cars for logging purposes, while the superintendent of the division testified that during this season the division had only 500 cars, which number was, during the season, reduced to 450. Clearly a case of failure to furnish cars to meet the normal demands was made by this testimony.
As to discrimination, it was the claim of defendant that there was a shortage of cars adaptable for use in transporting logs during this season due to unforeseen and unprecedented conditions; that heavy
“The common law of old in requiring the carrier to receive all goods and passengers recognized that ‘if his coach be full’ he was not liable for failing to transport more than he could carry.”
It is equally manifest that in case of car shortage the duty of the carrier is to allot the cars so as to prevent unjust discrimination. We have attempted to make clear that when a car shortage occurs, if the cars are allotted in accordance with a rule adopted by the carrier and it is claimed by the shipper that the rule works a discrimination, the shipper must first have that administrative question settled by the interstate commerce commission, and that no matter how inequitable the rule may be, or how unjustly it may discriminate against the individual shipper, its propriety is to be first submitted to the commission and the administrative question settled by that administrative body before any action may be brought for damages occasioned by its enforcement; but where a rule has been adopted and it is not adhered to and discrimination is worked by a failure to observe the rule, by and in its breach, then no administrative question is involved, but one of fact is presented which
There remains to be considered two assignments of error based on the charge of the court. The first of these which we shall discuss covers the main part of the charge. It is insisted by counsel for the plaintiff that it is not sufficiently specific, and it is pointed out that it covers some two and one-half pages of the record. But the length of the assignment of error alone does not determine the question as to whether it is sufficiently specific. It is somewhat difficult to perceive, when we consider the charge, how error could be assigned upon it without setting forth the portion claimed to be erroneous. Without quoting the assignment of error in full it will suffice to state that the court charged the jury that the plaintiff could re
The trial judge instructed the jury:
“The defendant was only bound to have on hand a sufficient supply of cars to meet the normal demands of the trade. It was not obliged to have a sufficient supply on hand to meet abnormal and unexpected conditions. But the normal demand of the trade is not to be estimated by the number of cars needed when the normal demand is least, but by the number when the normal demand is heaviest, in respect to a commodity, such as logs, where there are certain well known seasons during which the normal demand for log transportation is practically the same and heavier than at other times. And while the number of cars needed in each of the months of these seasons may be taken into consideration in determining the number needed to supply the demand during all of*439 the logging season, the number needed during the other months of the j^ear outside of the logging season — the summer months, in this case — is entitled to little consideration in determining what number of cars is needed to supply the normal demand of the trade.”
The other assignment of error relates to that portion of the above quoted instruction after the first two sentences. This instruction followed the rule laid down by the court of last resort of Kentucky in the case of Illinois Cent. R. Co. v. Coal & Coke Co., 150 Ky. 489 (150 S. W. 641, 44 L. R. A. [N. S.] 543, Ann. Cas. 1914C, 1255), and substantially contains the language of that court in deciding that question. We think it states the correct rule. In Shoptaugh v. Railroad Co., 147 Mo. App. 17 (126 S. W. 752), it was said:
“Taking up the appeal on the merits, we hold it would have been a good defense if an extraordinary increase of business on defendant’s line, which could not have been anticipated and provided for by using judgment and diligence, had prevented defendant from furnishing the cars. Railroad companies are expected to be prepared with an equipment necessary to handle the average traffic over their lines and such an increase as would be expected by managers of experience, for the volume of traffic will vary with the seasons and general business conditions. These contingencies ought to be provided for and the law requires them to be; but a railroad carrier need not be ready to handle any accession of business, however great, which some unforeseeable condition may cause; and in case an extraordinary traffic occurs and consequent congestion of freight, the carrier must distribute its cars at the various stations in proportion to their needs.”
In the case of State v. Railroad Co., 71 Neb. 593 (99 N. W. 309), it was said:
“It is the duty of a railroad company to provide itself with all the instrumentalities and facilities necessary to carry on the business for which it is organ*440 ized. It must furnish the necessary cars to transport the goods which are offered to it for carriage, but to this rule there is an exception. When the carrier has furnished itself with the appliances necessary to transport an amount of freight which may, in the usual course of events, be reasonably expected to be offered to it for carriage, taking into consideration the fact that at certain seasons more cars are needed, it has fulfilled its duty in that regard, and it will not be required to provide for such a rush of grain or other goods for transportation as may only occur in any given locality temporarily or at long intervals of time.”
The trial judge very carefully guarded his instruction and confined the rule to the normal demand of seasonal shipments. The defendant was bound to know that while the snow was on logs would be gotten out and offered for shipment; that more would be offered for shipment during that season of the year than at other seasons, was well known to the officers and agents of defendant, as this record discloses. The carrier is bound to know that at certain seasons of the year there will be movements of certain seasonal commodities, and was bound to anticipate and provide for such demand. There are certain portions of the State where fruit is raised in abundance and offered for shipment to the market. Clearly the carrier would not discharge either its common-law or its statutory duty by providing itself with only equipment sufficient to transport such fruit if given the entire year so to do. It must have sufficient equipment to transport such fruit when the normal demand is the greatest; and this is true and must be true of all seasonal freight. Any other rule would refuse to the shipper of seasonal commodities the markets of the country when such markets are open and available. We do not mean to say that the carrier is bound to provide for abnormal conditions, for unforeseen and unprecedented demands. In the instant case, the jury was told:
*441 “The defendant was only bound to have on hand a sufficient supply of cars to meet the normal demands of the trade. It was not obliged to have a sufficient supply on hand to meet abnormal and unexpected conditions.”
Further instructions were not requested and we discover no other error in the charge except the one noted. For this error the judgment must be reversed and a new trial granted, with costs to defendant.