246 F. 353 | 6th Cir. | 1917
Lead Opinion
(after stating the facts as above). [1] The question chiefly argued before us was that upon which the case turned below, viz., whether the cartage tariff applied at ■ all to these shipments. Another form of this question is whether the Eerguson Company, in the team delivery of the contents of the 12 cars to which this case was finally reduced, acted as the agent of the railroad pursu
« * * * Shipments so handled, will not be subject to ear service or stor- ' age charges, accruing through failure on part of this company to make delivery within specified free time.”
It is plain that the exemption from demurrage does not reach either all goods subject to the cartage tariff or even any goods subject to that tariff, unless the failure to make delivery within the specified free time was the failure of the company. For the purposes of this opinion, and without any decision to that effect, we assume that the railroad, through its cartage agent, had, pursuant to filed and published tariffs, contracted to deliver these shipments, by team or truck-hauling, to and at the building where the consignee was to use them, and hence there would seem to be the further assumption that the company had failed to make the agreed delivery; but, for the reasons to be stated, this further apparent assumption must be rejected.
“We refuse to accept it; you must hold this car on the tracks until we are ready.”
(Such a situation does not disclose failure on the part of the company to make delivery, within the proper meaning of paragraph 5. Of course, in a certain broad sense, since it was the duty of the company
Our conclusion that the undisputed testimony shows the situation above recited has been reached after some preliminary doubts. The record contains considerable evidence by which the consignee undertakes to put the blame upon the railroad and by which the railroad undertakes to assume that blame; but all this evidence, upon analysis, resolves itself into a claim that the railroad was at fault for placing these cars upon the delivery track in a consecutive order so vitally different from the consecutive order of original shipment that the consignee was under no obligation to unload them in even approximately the order of their placement. The consignee’s evidence showed — indeed, it is practically undisputed — that there were some 20 different sizes and shapes of these tile required for this building, that it was essential to use them in the building in a certain order, that they were shipped from the factory in this order, but that they were so placed upon the team track that, e. g., tile for the tenth floor were thus delivered before tile for the first floor, which had been shipped 90 days before the other. Even if it were conceded that shipments might be delivered to the consignee in such gross inversion of the order of shipment by the consignor as to be a breach of the railroad’s contract for proper carriage, it would not follow that the consignee might therefore disregard the published demurrage tariffs, and refuse to accept and unload the cars in the order of their arrival or placement. The whole body of demurrage rules and regulations is upon the theory that railroad tracks must not be used by shippers for warehouse purposes, and it cannot make any difference in the application of these tariffs that the shipper has no warehouse, or that a distorted order of delivery may make necessary a storage by the consignee or a handling otherwise unnecessary. If for this he may have a claim against the railroad, that would be another question. Darling v. Pittsburgh, etc., Ry., 37 Interst. Com. Com’n R. 401; and see Chicago, etc., R. R. v. Kirby, 225 U. S. 155, 166, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501.
There are two matters on the record which, while not controlling, yet tend to confirm the conclusion that there was nothing to go to the jury in dispute of the proposition that the final and vital delay was not because the Ferguson Company did not deliver, but was solely because the consignee would not receive. The first is that, as soon as the matter came to the attention of that counsel for the railroad who had special supervision of matters connected with the interstate commerce law, he directed that demurrage be collected for these cars; but this was,
Except for the disputes that existed, and which were submitted to the jury, as to who was responsible for the bunching, and as to whether the parties had agreed upon a form of notice of placement, the controlling facts were undisputed. It therefore becomes unnecessary to examine several complaints arising during the progress of the trial or concerning specific instructions.
The judgment of the court below is affirmed.
Oartage Tariff.
M. R. C. No. 766. I. C. C. 4005.
Michigan Central Railroad Co. Local Freight Tariff of Cartage Charges at Detroit, Michigan, Issued March 20th, 1911, Effective April 24, 1911.
1. The freight tariff rates of this company and its connections covering traffic to or from Detroit, Mich., are exclusive of the cost of cartage, but for the convenience of the public and for the purpose of securing uniformity of practice and to avoid unjust discrimination as between individuals, as required by law, this company has appointed the E. Ferguson Company, Limited, as its authorized cartage agents for the city of Detroit, and will be prepared to perform the cartage service from and to its freight houses and team tracks and the stores and warehouses of the public within the city limits.
2. The following rates will be collected for cartage to or from store or warehouse door when cartage is performed by the E. Ferguson Company, Limited:
Less than carload lots of 2<¡, per 100 pounds (subject to exceptions shown below), minimum charge for any one consignment 15^.
Carload package freight (subject to exceptions shown below), at V/z^ per 100 lbs.
Exceptions:
[Here follows list of many articles, not including building tile, and ending with:]
Any article weighing over one thousand pounds.
All freight rated sixth class and lower.
Property named and referred to under head of “Exceptions,” will be carted by the E. -Ferguson Company, Limited, under their own arrangements with shippers or receivers.
3. The aforesaid charges as to carloads are to cover the collection and delivery of complete consignments only from one shipper to one consignee. Where the consignee wishes his consignment delivered to other parties than himself, thus involving the separate accounting and collection of charges, then the cartage charge applicable to less than carload traffic will apply. This company will only make one expense bill for each consignment.
4. This company will not bill forward for collection from consignees the cartage charge at Detroit on outward traffic, but collect it from the shippers.
5. Where standing orders covering all shipments or single orders covering particular shipments are placed with this company previous to arrival of shipments authorizing this company to deliver under above rules, shipments so handled will not be subject to car service or storage charges accruing through failure on part of this company to make delivery within specified free time; and where orders are given subsequent to arrival of shipment, same will be subject to ear service and storage rules as outlined in M. C. R. R. I.
Demurrage Tariff.
Found in I. C. C. No. 3578, as follows:
Oar service rules applicable to all Michigan Central railroad stations in the state of Michigan, on both interstate and intrastate business, effective May 1, 1010.
Rule 1. Cars Subject to Rules. Cars held for or by consignors or consignees for loading, unloading, forwarding directions or for any other purpose are subject to these demurrage rules.
* * * * * * * * *
Rule 2. Tree Time Allowed, (a) Forty-eight hours (two days) free time allowed for loading or unloading on all commodities.
* #*#««** * *
Rule 3. Computing Túrne. Note. — In computing time Sundays and legal holidays (national, state and municipal) will be excluded. When a legal holiday falls on a Sunday, the following Monday will be excluded.
(a) On ears held for loading, time will be computed from the first 7 a. m. after placement on public delivery tracks.
(b) On cars hold Cor orders, time will be computed from the first 7 a. m. after the day on which notice of arrival is sent to consignee. On cars held for unloading, time will be computed from the first 7 a. m. after placement on public delivery tracks and after the day on which notice of arrival is sent to consignee.
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Rule 4. Notification, (a) Consignee shall be notified by carrier’s agent in writing, or as otherwise agreed to by carrier and consignee, within twenty-four hours after arrival of cars and billing at destination, such notice to contain point of shipment, car initials and number's, and the contents, and, if transferred in transit, the initials and number of the original car. In case ear is not placed on public delivery track within twenty-four hours after notice of arrival has been sent, a notice of placement shall be given to consignee.
* * * * * * * S * $
Rule 5. Placing Oar for Unloading. (b) When delivery cannot be made on specially designated public delivery tracks, on account of such tracks being fully occupied, or from other cause beyond the control of the carrier, the delivery will be made at the nearest available point accessible to the consignee and the consignee so notified.
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Rule 7. Demurrage Charge. After the expiration of the free time allowed, a charge of $i por car per day, or fraction of a day, will be made until car is released.
Rule 8. Claims. No demurrage charges shall be assessed under these rules for detention of cars through causes named below. If through error, demur-rage charges are assessed or collected under such conditions, they shall be promptly cancelled or refunded by the carrier.
* ******* *
(b) Bunching.
2. Cars for unloading or roconsigning. — When as a direct result of the act or neglect of carriers, cars destined for one consignee, at one point, and transported via the same route, are bunched in transit and delivered in accumulated numbers in excess of daily shipments, claim to bo presented to the carrier’s agent before the expiration of the free time. The consignee shall be allowed such free time as he would have been entitled to had the cars been delivered in accordance with the daily rate of shipment.
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(d) Delayed or improper notice by carrier.
Note. — When notice has been given in substantial compliance with the requirements as specified by the rules, the consignee shall not thereafter have
(e) Kailroad errors or omissions.
Dissenting Opinion
(dissenting). I agree with much that is said in the opinion, but some questions, which seem to me to be of a decisive character, were not alluded to. One hundred and fifteen errors were assigned, many of which were not argued, and most of which were probably speculative, but among those argued were tiróse which raise the questions to which I have referred. In order to state clearly the grounds of the conclusion I have reached it is necessary to malee a preliminary statement of certain facts shown by the record.
Two indictments were returned against the railroad company, and they were heard together as one case. The trial before a jury began on March 2, 1915, and a great deal of testimony was heard. The second of the indictments was numbered 5435, and charged 30 separate offenses under the interstate commerce law. The first of the indictments, numbered 5434, also contained 30 counts, 12 of which charged that in 12 separate instances, and in respect to. each of 12 separate cars the railroad company had failed to collect demurrage charges, these separate failures being alleged to be concessions in rates of transportation unlawfully made to the shipper, viz., the National Fireproofing Company. After the trial had progressed for seven days indictment No. 5435 was withdrawn. The trial continued 15 days longer. At its conclusion, and after tire argument to the jury, the court dismissed 18 of the counts of that indictment. Upon the remaining 12 counts (each of which, properly considered, covered the simple charge of failing to collect demurrage on. a separate car) the case was submitted to the jury, and a verdict of guilty was returned upon each count. The charges efficiently made in these 12 counts are very simple, and presumably were of themselves of very easy solution, but in respect to the whole case a great mass of testimony had been introduced, a large part of which was objected to, and in many instances exceptions to the ruling of the court had been taken by the, railroad company. These exceptions are covered by the assignments of error. The 12 counts, separately, contained exaggerated statements of the number of days for which, in respect to each car the demurrage charges, had not been collected. This exaggeration was probably based upon the indefensible theory of “constructive placements” of cars. In point of fact, the record clearly shows that the real average was a little less than four days for each of the 12 cars. The testimony to which we have referred was more directly addressed to the charges made in counts other than the 12 now involved, though in its general terms it might seem to reach every phase of the case, but neither when indictment No. 5435 was withdrawn nor when tire court, after the argument before the jury, took out of the case 18 of the counts in indictment No. 5434, and told the jury not to regard any of those counts, was anything done by the court to show the jury that much of the testimony that had been heard should not have any weight in the con
In respect to the 12 counts it is certain that when they were submitted to the jury all the evidence previously heard remained in the case, although much of it had been objected to and the objections had been overruled and exceptions taken. So far as the jury could understand, all this testimony bore upon the remaining counts, and they had no guidance for discriminating its inapplicability. The parts of the evidence which were obviously prejudicial were: Hirst. That respecting certain embargoes established July 6, 1912, which might have greatly influenced the jury in what they did. Everything respecting these embargoes occurred some time after each of the cars referred to in the 12 counts had reached Detroit in due course. The question of an embargo upon freight outside of Detroit could not, we think, by any possibility, have been competent in respect to demurrage charges upon freights that had reached Detroit before an embargo was laid. Though, prima facie, incompetent, it remained in the case, and as we shall point out, was effectively used in another connection. Second. The numerous letters of Bemet, Ingalls and Rowley. This testimony, all left in the record and never taken from the jury, was bound to influence that body in its deliberations; and, third, the testimony relative to the inability of the National Fireproofing Company to unload shipments — in other words, testimony in respect to a certain congestion of traffic and in respect to the theory of “constructive placements.”
Not only did the court, over the objections of the defendant, admit the testimony as to the embargoes of July 6, 1912, and later, to which we. have referred, but by its charge made after all but the 12 counts had been eliminated, the jury were expressly instructed to consider that testimony in connection with the other testimony heard at the trial. To this part of the charge the defendant excepted and assigned error upon it. It seems to me that this was not only to the probable, but to the manifest, prejudice of the defendant, as all the embargoes related to matters outside of Detroit, and were issued after the delivery in that city of all the 12 cars. Under these circumstances this testimony and the charge upon it must have confused and misled the jury. Especially was this testimony also inadmissible because no allegation respecting the embargoes is made in the 12 counts.
The indictment in each of the 12 counts alleged that before the National Fireproofing Company received and unloaded the cars respectively referred to in the counts separately the railroad company did “constructively place” said cars in its yards in Detroit, and did notify the National Fireproofing Company accordingly. Testimony to establish this “constructive” placement was objected to, but "was admitted and exceptions taken. The schedules, so far as I can see, contain no clause to justify the claims or the allegations of constructive placements. Nothing like it was, under the law, an element of the offenses charged in the 12 counts. These allegations and this testimony were alike impertinent and immaterial because of that fact, and proof of “constructive” placements was not warranted by anything
Possibly the errors I have referred to in respect to testimony did not influence the jury more than they did the trial judge, who appears to me to have inflicted an excessive penalty as a direct result of those errors. This seems apparent when we read what he said when imposing the sentence. The record shows that he then said:
“It is true tliat the penalty fixed by this statute is a very heavy one. The minimum is.heaviér than almost any other criminal statute fixes that I have anything to do -with; and the maximum is correspondingly high. The ordinary small fine in matters of this kind would he too trifling to consider in connection with the magnitude of the offense in dollars and cents.. I have already interpreted the law to mean that (and this is my honest belief) moral turpitude and intentional wrongdoing have nothing to do with it. The result that follows the congestion is of a magnitude that one can hardly comprehend. This case was a revelation to me as to the awful results following congestion. Thousands of cars are held that cannot be delivered, and of course millions of dollars of damage done to the public taken as a whole, the railroads, the . shipping public, the consuming public, the purchasing public, and to every one. The results that follow misfortunes of this kind are enormous; they are of great magnitude. And it is a proposition of great magnitude; it is dealing with big things, with matters of great volume, and, in proportion, from a money standpoint, goes far beyond the ordinary affairs of life. They deal with millions instead of dollars and cents. So when we think about the subject-matter they are dealing with and the end meant to be accomplished, the penalty, as I see it, is entirely reasonable under the interpretation that I gave to it that intentional wrongdoing is not necessary.”
The congestion he referred to may have been disastrous to individuals, but the charge against the defendant in the 12 counts under consideration was not really that of causing a “congestion,” which, per se, was not unlawful, but that of failing to collect only a few days’ demurrage on each of only 12 cars specified in the 12 counts — thereby making unlawful concessions in rates of transportation. He said that thousands of cars are held in such cases and tliat the misfortunes which follow were “enormous.” The mere “congestion” which caused such results was not unlawful, and for that reason could not properly have been proved as an element of the offenses charged; and as the attempt to prove it had been made over the objections of the defendant it is well to say that the recent investigation of car service by the Interstate Commerce Commission developed that there is no statute, crim
It seems to me, therefore, that, could this case come to be tried upon the 12 counts alone, and the testimony be confined to the legal offenses those counts actually charge, there could be a judgment rendered more nearly fitting the crimes charged, namely, mere noncollection of de-murrage for a few days under circumstances indicating nothing like willful or wanton violations of the law, as, indeed, the learned court afterwards said was the fact. ■ Tor these reasons, I think the judgment should be reversed for the errors pointed out. The case can then be retried in a different atmosphere and without the complications to which I have alluded. This, I believe, would be promotive of justice.
Of course I do not doubt that ordinarily the trial court may exercise the discretion the statute gives in determining between the lowest and the highest penalty prescribed; but where the court may not merely have done that, but may unconsciously have permitted other factors to intrude themselves, justice may require a correction of a wrong unintentionally done. I think there should be a reversal, with directions that will more strictly limit the investigation and testimony to the 12 counts in a way to avoid the errors pointed out.
Rehearing
On Motion for Rehearing.
The motion points out two errors in the opinion.
It was said that the indictment for granting a concession was dismissed while the indictment for not observing the tariff was prosecuted to the judgment against which the writ of error is directed. The names given to the indictments should have been reversed. The same count of each indictment recited in identical language the same facts, but the concluding paragraph of each count in one indictment alleged that the described offense was the giving of a concession, and in the other indictment alleged that the same facts constituted a failure to observe the tariff. We do not see that the erroneous recital in the opinion as to the name of the surviving indictment could possibly have been important.
By way of giving support to the conclusion already independently reached that the evidence on a certain point was undisputed, the opinion recited that the District Judge had so stated in his charge to the jury and that his statement had not been then challenged. The rehearing application points out that this statement by the District Judge was not in his charge to the jury, but in the course of giving his reasons for rejecting the evidence claimed by defendant to be vital. It is not said that, whenever the District Judge made the statement, his attention was then, or ever, distinctly directed to the point. In view of the use which the opinion made of this subject-matter, whatever error there was therein cannot be controlling.
It is also now said that the defendant was indicted for violating the demurrage tariff, but convicted of violating the cartage tariff. We think this a misapprehension. To a prosecution based on the demur-rage tariff, the defendant interposed the cartage tariff, practically by way of confession and avoidance. Conceding that the demurrage had not been collected, it justified because an exception to the demurrage tariff had been created by the cartage tariff. We held that the proper application of the cartage tariff did not justify the alleged exception. This did not convict defendant of an offense not charged.
In other substantial respects, the application presents nothing not already fully considered. It is denied.