201 Pa. 624 | Pa. | 1902
Opinion by
The plaintiff, as a common carrier corporation, before 1893, adopted by its proper officers this rule :
“ A charge of one dollar shall be imposed for car service for and upon each car carried over any portion of its line of railroad not unloaded by the consignee within forty-eight hours from the time said car arrived at the destination thereof, ready for delivery to such consignee, for each day or part of day after said forty-eight hours, not including Sundays and legal holidays, during which said car should remain unloaded, the said charge being payable by the consignee or person receiving the car.”
From July, 1893, up to December, 1898, the defendant, which is a large iron and steel manufacturer at Nicetown in Philadelphia county, received from plaintiff consigned to the Steel company, about 14,000 cars laden with iron, coal and other products used in its manufacturing business. A large number of these cars were detained beyond the forty-eight hours, some for many days, before being unloaded. Plaintiff charged for the delay as provided by the rule quoted, and presented monthly bills for the same to defendant, which it refused to pay. In an affidavit of defense it denied the right to make the charge and consequently, its liability to pay. Plaintiff, then took a rule to show cause why judgment should not be entered for want of sufficient affidavit of defense. The aggregate of the charges within the years named, was $4,048. The learned President Judge Abnold of the court below, in his opinion, discharging the rule, says :
“ Conceding that a carrier may charge a consignee a fixed rate in the nature of demurrage for the detention of its cars beyond a reasonable time for discharging their cargoes, and that the rate claimed in the present suit is a reasonable rate, yet there is sufficient denial of the facts upon which the plaintiff bases its claim to prevent the entry of a summary judgment, and therefore, we discharge the rule for judgment for want of a sufficient affidavit of defense.”
The plaintiff has an unquestioned right as a common carrier to make reasonable rules to speed the unloading of its cars; cars are for the transportation of freight, not for its storage. A rule on its face may apparently be unreasonable, either as to time allowed for unloading, or as to the extent of the penalty by which it is sought to enforce a reasonable time limit; or the reasonableness of the rule may be doubtful, in either of which cases, the evidence would be for a jury. But no such question arises here, for the affidavit does not deny the reasonableness of this rule as applicable to others ; it only denies, on other grounds, the right of plaintiff to apply it to these shipments. Where the rule is manifestly a reasonable one, as this one is, both as to time and charge, the court will not take up time by instructing a jury to find the fact, any more than it would instruct a jury, on undisputed facts, to find that a collecting bank had protested a negotiable note within a reasonable time after nonpayment. Although, the question has not been heretofore directly passed upon by this court, it has been decided in several of the states : Miller v. Mansfield, 112 Mass. 260; Norfolk, etc., Railroad Co. v. Adams, 90 Va. 393; 18 S. E. Repr. 673 ; Kentucky Wagon Mfg. Co. v. Ohio, etc., Railway Co., 98 Ky. 152; 32 S. W. Repr. 595, and other cases.
As before noticed, with the plaintiffs statement is filed a complete copy of its account, giving car initials, number, contents, exact hour of arrival, date of release, number of days detained, and amount of charge. None of the cars charged for were kept less than three days, and many of them from seven to twenty-one days. So far as it was in the power of a railroad company to give notice to a consignee of every material fact, the defendant, got this notice from plaintiff when the bills were rendered. Wherein does the affidavit make an issue of fact which ought to go to a jury ? It sets out that the demurrage rule is not applicable to it, because large numbers of the cars consigned to it were unloaded promptly, but being reloaded as outgoing shipments, the detention caused by reloading is embraced in a charge of delay in unloading. The plaintiff having sworn to its detailed statement, having positively
Every averment is an inference from a “ carefully prepared ” system of bookkeeping of its own, without a copy of the particulars which would demonstrate the errors of plaintiff’s charges. “ The affidavit should state specifically and at length the nature and character of the defense relied on: ” Bryar v. Harrison, 37 Pa. 233. “ The spirit of the affidavit of defense law abhors evasion and equivocation and punishes them by entering judgment: ” Endlich on Affidavits of Defense, sec. 377; Woods v. Watkins, 40 Pa. 458.
The further objection to plaintiff’s claim is, that it does not
Therefore the decree discharging the rule is reversed and