165 Mich. 642 | Mich. | 1911
The defendant demanded and the plaintiff paid $70 demurrage charges on certain car- loads
Briefly stated, the claim of the plaintiff is that each of these cars was held for some period of time at Grand Rapids on account, and solely on account, of the weather, and to preserve the potatoes; that for such periods as the cars were so held defendant should not have charged demurrage, because it is, as matter of law, unreasonable to exact from a shipper demurrage charges when safe shipment is interfered with by the elements.
It is the contention of the defendant (1) that the reasonableness of its demurrage charges upon cars employed in interstate shipment is not a question to be determined by the courts, and is to be determined by the interstate commerce commission. (2) That as its rules, on file with the interstate commerce commission, permit demurrage
The court instructed the jury that if they found that the plaintiff did not ship out the potatoes, because it had no orders for them — had not sold them — the verdict should be for defendant; that if the cars were detained because of the weather they should determine whether the rule prohibiting the heating of refrigerator cars was a reasonable rule; if it was a reasonable rule, they should then determine whether the other rule requiring payment of demurrage under the circumstances was a reasonable rule. Later the court said—
“That the fact, if it is a fact, that the plaintiff held these cars in Grand Rapids, because fires would not be allowed in them while in transit, and because it was too cold to ship the potatoes without fires in the cars, does not exempt plaintiff from paying for the detention of the cars while they were held here, otherwise called demurrage, * * * and which the plaintiff did pay and seeks in this suit to recover back, unless the rule prohibiting fires was an unreasonable rule.”
Further along in the charge the court said:
“ It appears by the evidence in this case that the defendant has a rule which absolutely prohibits the firing of refrigerator cars while in transit. It also appears that the defendant charges for cars which stand on its tracks more than 48 hours at the rate of $1 per day and for fractions thereof. These are rules made by the Grand Rapids & Indiana Railway Company itself; they are not laws, and can only bind the plaintiff in this case as far as the same are reasonable, and whether or not these rules are reasonable under the circumstances of the case is a ques*645 tion for you to determine from all of the evidence in the case.”
Again the jury was instructed as follows:
“I charge you that if you find that the reason that these cars were not shipped out by the plaintiff from January 15 to February 11, 1908, was because the weather was so cold that the plaintiff could not ship its cars of potatoes without great danger, of freezing, and that the railroad company would not allow the cars to go out with fires in them and protect them from freezing, and that all risk from freezing was upon the plaintiff, that it is for you to determine whether or not such a rule is reasonable, and if you find that it is not reasonable your verdict should be for the plaintiff in this case.”
We interpret the charge, as a whole, to mean that, if the cars were not held because of the weather, or if the rule prohibiting the use of stoves in refrigerator cars in transit was reasonable, the plaintiff could not recover. This was not the plaintiff’s theory which, as clearly indicated in a request to charge, was one requiring the court to determine, as matter of law, that demurrage charges, exacted during periods when it was too cold to ship potatoes in unheated cars, were unreasonable exactions. There was testimony tending to prove that the cars were delayed because there was no buyer, and not on account of the weather. There was testimony tending to prove that the rule of defendant, refusing the use of stoves in refrigerator cars in transit, was the rule also of all, or nearly all, of the other railroads in the State during the particular period. There was a general verdict for defendant, and it is impossible to ascertain whether the jury considered the question of the reasonableness of such a rule. Whether they did or not, it is clear that plaintiff is concluded by the verdict, unless it was error to refuse the instruction that plaintiff was not liable for delays occasioned by the weather, or unless some error was committed during the course of the trial affecting the issues submitted to the jury.
The single complaint which is made is based upon the
The offer of testimony which was made was to show “ by the books ” that plaintiff had sustained a loss on certain cars of potatoes. The competency of the books for such a purpose was not the ground of the objection or of the ruling, but we cannot assume they were competent evidence of the fact.
Should the court have determined, as matter of law, that defendant’s demurrage charges were unreasonable ? The rate of demurrage which was charged is not questioned. It was a proper rate, if any charge was to be made. The act of Congress of June 29, 1906, chap. 3591, 34 U. S. Stat. 584 (U. S. Comp. Stat. Supp. 1909, p. 1149), to regulate commerce, known as the Hepburn act, requires every common carrier, subject to the provisions of the act, to file with the commission created by the act schedules showing all rates, fares, and charges for transportation. Carriers are not permitted to charge or demand greater, or less, or different, compensation than specified in the tariffs filed and in effect at the time. By section 1 of the act of Congress of February 19, 1903, chap. 708, 32 U. S. Stat. 847 (U. S. Comp. Stat. Supp. 1909, p. 1138), known as the Elkins act, the rate filed by a carrier with the commission is conclusively deemed to be the legal rate as against the carrier, and a departure from it is made an offense. A charge made by a shipper in the
Assuming that at the common law the shipper has a right of action against the carrier to recover an unreasonable sum exacted as a condition for the carriage, or for the delivery, of goods, and assuming, further, that the courts of the State have jurisdiction to afford relief consistent with the published rates and charges filed by common carriers pursuant to the interstate commerce act, we are of opinion that the jurisdiction of courts to determine the reasonableness of the tariff published and filed with the interstate commerce commission is denied by the Supreme Court of the United States, in Texas, etc., R. Co. v. Oil Co., 204 U. S. 426 (27 Sup. Ct. 350), in which it is held—
“That a shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the interstate commerce commission, which body alone is vested with power originally to entertain proceedings for the alteration of an established schedule, because the rates' fixed therein are unreasonable.”
The judgment is affirmed.