Opinion
Opinion filed August 13, 1927.
1. — Carriers — Commerce — Demurrage Charges — Transportation Charges. Demurrage charges are a part of transportation charges and are regulated on intrastate shipments by the Public Service Commission, under section 10447, Revised Statutes 1919, and sections 10442, 10443, prohibiting unjust discrimination and unreasonable preference between intrastate shippers, and on interstate shipments by the Interstate Commerce Commission.
2. — Same — Same — Same — Action for Demurrage Charges — Counterclaim. In action by carrier for demurrage charges, counterclaim to recover damages, alleged to have been sustained by carrier's failure to deliver cars within reasonable time after receiving shipment, cannot be interposed by shipper, in view of sections 10442, 10443, Revised Statutes 1919, prohibiting unjust discrimination and unreasonable preference between intrastate shippers.
Appeal from the Circuit Court of Pemiscot County. — Hon. Henry C. Riley, Judge.
AFFIRMED.
Von Mayes for appellants.
(1) A defendant may set forth in his answer any counterclaim arising out of the transaction set forth in the petition, or connected with the subject of the action. Frick v. Supplies Co., 288 S.W. 1000; Sec. 1233, R.S. 1919. (2) The law of the forum governs as to the form of remedy and all matters of procedure relating thereto, and to all intrastate shipments. 1 Corpus Juris, sec. 92, p. 984; Thompson v. Ins. Co., 169 Mo. 12; Lusk v. Atkinson, 268 Mo. 109; State ex rel. v. Pub. Serv. Comm., 269 Mo. 63. (3) A counterclaim may not lie in an action to recover a statutory penalty. Woodword v. Conder, 33 Mo. App. 147; 35 Cyc. p. 655. But a demurrage charge is not a statutory penalty. 24 R.C.L. sec. 557, p. 1430; 10 Corpus Juris, sec. 734, p. 464, and sec. 745, p. 471; Sec. 9917, R.S. 1919. 30 Cyc. p. 1335, 30 A.S.R. 635; Darlington v. Railroad, 99 Mo. App. 1; Ramlose v. Dallman, 100 Mo. App. 347; 4 R.C.L., sec. 317, p. 864. The statutes regulating freight rates and demurrage charges have been abolished in Missouri. Courts take judicial knowledge of the regulations of the Public Service Commission. McGrew Coal Co. v. Mellon, 287 S.W. 450; Williams v. Railroad, 274 S.W. 935; 23 Corpus Juris, sec. 1897, p. 99. A counterclaim will lie in a case to recover demurrage charges. Louisville Ry. Co. v. Waller, 145 Ky. 811, 159 S.W. 590. (4) The counterclaim filed in this cause states a cause of action. McCarten v. Railroad, 264 S.W. 50; Russell Grain Co. v. Railroad, 114 Mo. App. 488; Davis v. Railroad, 126 Mo. 69.
E.T. Miller and Ward Reeves for respondent.
(1) Demurrage charges are now fixed by the Public Service Commission and the Interstate Commerce Commission. McGrew Coal Co. v. Melson, 287 S.W. 450; Sec. 10447, R.S. 1919. (2) Demurrage charges on each car are $2 per day for the first four days after the free time, and for each succeeding day the sum of $5 until the car is released. Freight Tariff No. 4-C; P.S.C. Mo. No. 114; I.C.C. No. 1340. (3) Where a shipper is sued for lawful freight charges, as in this case, a counterclaim for damage cannot be set up by the defendant. Ill. Cent. R. Co. v. Hoopes Sons, 233 F. 135; Chicago Northwestern v. Stein Co., 233 F. 716; Johnson-Brown Co. v. Railroad Co., 239 F. 590; Lake Coal Corp. v. Railway Co., 1 F.2d 968. (4) The court was also justified in striking out the counterclaim on the third ground of plaintiff's motion, since it clearly appears that the counterclaim did not grow out of the same cause of action pleaded in plaintiff's petition. The plaintiff's cause of action accrued during September on carload shipments delivered to the defendants at Hayti, Missouri, which the defendants failed to unload within the free time, while defendants' counterclaim is for damages on account of delay in various shipments (not specified) during a period of twenty-one months and has no connection whatever with the plaintiff's cause of action for failure to unload cars during the month of September. See Petition, Abstract, pages No. 2 and No. 3, and Counterclaim, Abstract, pages No. 4, No. 5 and No. 6. (5) The court was also justified in striking out the alleged counterclaim on the fourth ground of the motion since the counterclaim wholly fails to state facts sufficient to constitute a cause of action against the plaintiff. The counterclaim, as a cause of action, is defective in many particulars: It is so indefinite that it wholly fails to apprise the plaintiff of sufficient facts to enable it to interpose a defense. It covers a period of time of twenty-one months, during which time, there may have been more than one thousand carloads of silica, gravel and sand shipped by the defendants, since, according to the record, there was forty carloads shipped during the month of September, 1923. The counterclaim does not undertake to separate these various shipments, and it would be impossible for the defendants to prepare a defense to any such allegation. The counterclaim is also defective since it does not allege what a reasonable time for shipment is between Bloomfield, Missouri, and Hayti, Missouri, or from Pitt, Missouri, to Hayti, Missouri. It alleges a bare legal conclusion that they were not delivered within a reasonable time. This counterclaim wholly fails to have a plain and concise statement of facts constituting the cause of action. Sec. 1220, R.S. 1919.
Plaintiff sued to recover demurrage charges on cars of silica, gravel and sand shipped to defendants at Hayti, Mo., from Bloomfield and Pitt, Mo. Defendants answered by a general denial, and a plea that if any of the cars were not unloaded within the time allowed the delay was due to the bunching of the cars by plaintiff or to weather conditions. Also defendants filed a counterclaim seeking to recover damages alleged to have been sustained on account of the failure of plaintiff to deliver the cars at Hayti within a reasonable time after receiving them for shipment at Bloomfield and Pitt. On motion the counterclaim was stricken out. The cause was referred and when the report of the referee was made it was approved and judgment given against defendants in accordance with the report of the referee.
The only question here is the correctness of the action of the court in striking out the counterclaim. The grounds set out in the motion to strike are: (1) That plaintiff's cause of action is based upon freight charges due it as a common carrier of freight and in such case a counterclaim will not lie; (2) that the freight charges sued for are the legally published tariff charges approved by the Public Service Commission of Missouri and by the Interstate Commerce Commission and that the counterclaim is no defense; (3) that the counterclaim does not grow out of the same transaction as pleaded in plaintiff's petition; and (4) that the counterclaim wholly fails to state facts sufficient to constitute a counterclaim and fails to state any cause of action.
Will a counterclaim in such an action as here lie? Demurrage charges are a part of the transportation charges (Hines v. Richardson, 290 F. 162), hence we may reason the question presented the same as though plaintiff's action were one to recover for part of freight charges. Demurrage charges on intrastate shipments are regulated by the Public Service Commission. [Sec. 10447, R.S. 1919.] Like charges, of course, on interstate shipments are regulated by the Interstate Commerce Commission. Unjust discrimination and unreasonable preference between intrastate shippers are prohibited by sections 10442 and 10443, Revised Statutes 1919.
It is contended that to permit a counterclaim by a shipper in an action by a common carrier to recover transportation charges would open the door to fraud and collusion and create an opportunity for a recurrence of conditions which at one time "startled the nation when it was found that favorite shippers were getting rich upon the rebates granted by carriers." [Illinois Central Railway Co. v. Hoopes Sons, 233 F. 135.] The case cited and the following hold that in an action by a carrier against a shipper for transportation charges on an interstate shipment a counterclaim will not lie. [Bush v. Keystone Driller Co., 199 Mo. App. 152, 199 S.W. 597; Chicago N.W. Ry. Co. v. Stein Co., 233 F. 716; Johnson-Brown Co. v. Delaware, L. W.R. Co., 239 F. 590; Delaware, L. W.R. Co. v. Henry Nuhs Co., 111 Atl. (N.J.) 223.] These cases are bottomed upon the theory that to permit a counterclaim to be interposed would open the door to fraud and discrimination contrary to law. [Sec. 3, Mason's Code, Title 49, sec. 2.]
On the other hand it has been held that a counterclaim may be pleaded in defense in an action by a carrier for transportation charges. [See Wells Fargo Co. v. Cuneo, 241 F. 727; Chicago N.W. Ry. Co. v. Tecktonius Mfg. Co., 262 F. 715; Payne v. Clarke, 271 F. 525; Pennsylvania R. Co. v. Bellinger, 166 N.Y.S. 652; Louisville N.R. Co. v. Waller Co., 159 S.W. (Ky.) 590; New York Central R. Co. v. Federal Sugar Refining Co., 194 N.Y.S. 467. See, also, 10 C.J. 448.]
Our statute, referred to, supra, prohibiting unjust discrimination was intended to eliminate the same evils within its scope of operation as was the Federal statute prohibiting unjust discrimination within its scope. The same reasons applied in the Federal courts in reaching the conclusion that a counterclaim will or will not lie in an action by a carrier to recover transportation charges on an interstate shipment are equally applicable on the same question when presented in an intrastate shipment. In Bush v. Keystone Driller Company, supra, we held that estoppel could not be pleaded as a defense in an action by a carrier to recover a balance of transportation charges due on an interstate shipment. There we also considered by way of analogy the counterclaim question, and expressed our opinion as to the right to plead a counterclaim in such case. True a counterclaim was not there involved, but quite a similar principle was involved and what we there said respecting the defense of counterclaim we think sound and more in keeping with the letter and spirit of the law denouncing unjust discrimination than are the cases to the contrary.
It is our conclusion that defendants' counterclaim cannot be interposed. Reaching this conclusion it follows that the judgment should be affirmed and it is so ordered. Cox, P.J., and Bailey, J., concur.