Norfolk & Western Railway Co. v. Swift & Co.

Opinion by Henderson, J.,

This case comes before" us on an appeal from the refusal of the court below to make absolute a rule for judgment for want of a sufficient affidavit of defense. The plaintiff is a railroad company engaged in interstate transportation and delivered to the defendant at its warehouse in West Virginia, a large quantity of merchandise belonging to the defendant and consigned to it at the station where the warehouse is located. The merchandise was contained in cars belonging to the defendant, on a railroad switch or siding in proximity to the warehouse. The plaintiff’s claim is for demurrage alleged to be due on loaded cars detained by the defendant for a longer time than the free period allowed *476 by the demurrage tariffs adopted and published by the plaintiff. There is no dispute in regard to the amount ■ of the claim nor any. allegation on the part of the defendant that the demurrage regulation is unreasonable as to time or amount. The defense arises out of the construction of two contracts entered into by the plaintiff and defendant dated respectively November 26, 1902, and November 2, 1903, the first of which provided for the construction by the plaintiff of a "side or spur track” to the plant of the defendant a distance of about 250 feet in length and the maintenance and operation of the same, the cost of the construction of which track was to be paid by the defendant as an inducement to the plaintiff to furnish the shipping facility. It was provided in the third paragraph of this contract that the title and ownership of the rails, ties, fastenings and other material of every kind and description used in the construction of the track are and shall remain in the railway company with the right of removal of the same by the railway company whenever it shall deem it advisable so to do. In the seventh paragraph it was agreed that the railway company might use the side or spur track in connection with any extension of the same which it might construct for the purpose of reaching business and industries other than the business and industries of the party of the second part and that it might handle and transport the business of others either upon or along said side or spur track and any extension thereof. It was provided in the fourth paragraph that the Swift Company should promptly load and unload at its own cost all cars, to be moved to and from its plant or other point designated by it on the side track consigned to or by it and that "the said cars shall be subject to car service rules except such cars as belong to the Swift Refrigerator Line standing on tracks set aside for that purpose.” The second contract permitted the defendant to locate and maintain a warehouse on land of the plaintiff contiguous to the switch referred *477 to. The defense presented is that the switch was constructed as a trade convenience at the cost of the defendant; that it was used exclusively for shipments to it; that the cars in use in such shipments were the private property of the defendant and that therefore no obligation for demurrage could arise from delay in unloading the cars at the warehouse. That the cars would be subject to demurrage unless the defendant is relieved by the contracts referred to does not seem to be disputed. That demurrage in interstate commerce business is a subject of federal regulation and is a lawful charge for transportation service under the amendment of 1906 to the interstate commerce legislation has been decided in numerous eases: T. & P. R. Co. v. Cotton Oil Co., 204 U. S. 426 ; Chicago, R. I. & P. Ry. Co. v. Hardwick Elevator Co., 226 U. S. 426 ; St. Louis, I. M. & S. R. Co. v. Edwards, 227 U. S. 266 ; P. R. R. Co. v. Coggins Co., 38 Pa. Superior Ct. 129 . The Interstate Commerce Commission is the authority to determine the reasonableness of the demurrage rates. Robinson v. B. & O. R. R., 222 U. S. 606 ; and the Interstate Commerce Commission in Proctor v. C. H. & D. Ry. Co., 19 I. C. C. Rep. 566, sustains the demurrage regulation under which the plaintiff claims. It is provided in these regulations that private cars while in railroad service whether on carriers’ or private tracks are subject to the demurrage rules to the same extent as cars of railroad ownership. Unless the contracts between the parties relieve the defendant its liability arises under the demurrage rules. It is averred in the first affidavit of defense that this siding was used exclusively for the purpose of making deliveries to the defendant of car load shipments of meat consigned to it at the station where the warehouse is located and that all the cars on which demurrage is claimed are private cars belonging to the defendant except two cars which belong to a refrigerator line and which the defendant claimed for the purposes of this case. This averment and that *478 contained in the supplemental affidavit of defense in which the defendant set up the provision of article four of the contract of November 26, 1902, which excepted such cars from car service rules “as belong to the Swift Refrigerator line standing on tracks set aside for that purpose” present the defense relied on. An examination of these contracts makes it clear that the track in question was for all the purposes of transportation the property of the plaintiff. Notwithstanding the fact that the cost of its construction was borne by the defendant it was as much a part of the line of railway as any other portion of its track. While for the time being it may have been used exclusively for the business of the defendant, ownership of the track was expressly declared to be in the railroad company and it was authorized to extend it and to use it in connection with any other business which might be developed on or along the track or any extension of it. It had exclusive power and right to control and operate it in all respects as if it had been acquired and constructed at the original and sole expense of the railway company. Such are the clear provisions of the agreement between the parties. The defendant’s cars were therefore on the track of the plaintiff and were by the tariff regulations subject to the demurrage charge to which other shippers under like circumstances were subject. The defendant had no privilege which permitted it to use its cars when loaded and on the track of the railroad company under more favorable conditions than were accorded to other shippers. We are unable to view the relation of the parties in any light in which it can be seén that the siding in question was the private property of the defendant. It expressly disavowed the title when the arrangement was made for the construction of the track and nothing averred- with reference to the course of business affects this relation. Nor is the defendant aided by the provision in the fourth paragraph of the contract of November 26, 1902, relating to the car *479 service rules. The exception therein contained has evident reference to cars not in service but located in places set apart for the storage of cars. It is provided in the demurrage tariff that empty private cars stored on carriers’ or private tracks shall not be subject to demurrage, and the words of the contract read in connection with the demurrage rule show an intention to apply the car service rules to all of the defendant’s private cars except those which have been put out of service. The plaintiff’s siding was not constructed for the storage of loaded cars and was not intended to be used for that purpose. It was a service track and was in use at the time the charges were incurred for which the plaintiff’s action was brought. We are of the opinion, therefore, that the affidavits of defense do not set up a sufficient objection in fact or in law to the plaintiff’s claim.

The decree discharging the rule is therefore reversed and the record remitted to the court below with direction to enter judgment for the plaintiff unless, other legal or equitable cause be shown to the court below why judgment should not be entered.