#### DENVER & RIO GRANDE RAILROAD COMPANY v. THE UNITED STATES.

[No. 31936.

Decided January 7, 1918.]

*On Defendants’’ Demurrer.*

*Pleading; necessary allegations of petitions.*— The rules of this court are sufficiently liberal as not to require the strict rules of pleading, and all that is necessary in setting out a claim is to so state it that the court is properly advised as to what it is. '

*Estoppel.-*— Plaintiff's cars loaded with cement having been detained by order of the Reclamation Service in excess of the 48 hours allowed by the tariffs approved by the Interstate Commerce Commission and demurrage having been refused therefor *156under said rules, the defendants are now estopped from making a defense based upon the theory that the railroad company should have refused to hold the cars whether the Reclamation Service wished it to do so or not.

*The Reporters*statement of the case:

The averments of the amended petition to which defendants demur will be found sufficiently set forth in the opinion of the court.

*Mr. W. D. Ealcin,*with whom was *Mr. Assistant Attorney General Huston Thompson,*for the demurrer.

Plaintiff in its original petition declared upon rules 2, 4, and 5 of the Utah Car Service Association, which it stated to be “ so much as is material ” of those rules. Eule 8 was not set out and was not referred to in its presentation of its case to this court, nor in its defense before the Interstate Commerce Commission. The cause of action which it then presented was decided adversely to it by both this court and the commission.

The commission consented to take rule 8 into the case six years after its original decision against plaintiff. We are not concerned with the question whether it was competent for the commission to do this. The commission is not a court but an administrative body. It was not passing upon the present legality of plaintiff’s claim against the United States, but upon the legality of the assessment at the túne it was made. The statute of limitation had no application to that question. •

This court, however, is bound by section 156 of the Judicial Code by which claims are barred “ unless the petition setting forth a statement thereof is filed in the court * * * within six years after the claim first accrues.” The claim accrued, if at all, upon the completion of the contract in August, 1907. *Giurtis*v. *United States,*34 C. Cls., 1. Not until April 23, 1917, did plaintiff file a petition setting forth a statement of its claim based upon rule 8.

The amendment setting forth rule 8 is a departure from the original petition. As compared with the rules originally pleaded, rule 8 applies to a different state of facts and calls for different proof in defense. Had rule 8 been pleaded *157within the limitation period defendants ■ would have had proper opportunity to produce evidence to meet it but after the 10 years that have .elapsed since the cause of action accrued defendants can not legally be called upon to resurrect witnesses or recall them from the ends of the earth. That the amendment was filed by consent does not affect the force of the statute of limitations. *Union Pacific Railway*v. *Wyler,*158 U. S. 285.

Plaintiff’s petition as amended does not claim demurrage based upon detention of cars at Milepost 679, the destination to which they were billed, but upon cars held at Thistle Junction, which was not their destination but an intermediate point. It does not allege that the sidetrack at Milepost 679 was at any time “ fully occupied ” as contemplated in rule 5.of the association. It does not allege that defendants refused to receive the cars upon the sidetrack as fast as delivery was tendered, but only that defendants “ directed the delivery of such cars on said switch at times and in number to suit its convenience in unloading.”

Plaintiff’s case therefore must rest upon the idea that the allegation just quoted shows the shipments to have been held subject to order as under rules 4 and 8, delayed for reasons beyond the control of the carrier as per rules 5 and 8, or detained for want of proper shipping instructions, as provided in rule 8.

The cars were not billed “ subject to order,” but to “ Milepost 679, near Thistle Junction.” Plaintiff not only had the right to deliver them at the point of destination, but until it did so its duty as a carrier was not completed. The cars were not “subject to order,” but were subject only to plaintiff’s duty under its contract to deliver them at the point to which they were consigned.

A rule that “ cars for unloading shall be considered placed when such cars are held awaiting orders from consignors or consignees” does not apply to the case of cars which by contract are to be unloaded on a designated carload delivery track, and which for some reason can not be delivered there, but applies to cases where the carrier is ready to make delivery and the consignor or consignee *158neglects or refuses to designate the place where delivery is desired. *Wooley*v. *O. & N. W. By. Go.,*150 Wis. 183.

Rule 4 therefore does not apply.

Rule 5 does not seem to have any application to the holding of cars at an intermediate point, but simply excuses the carrier from delivering on specially designated yards or tracks under certain conditions and provides that “ delivery shall be made at the nearest available point.” This manifestly does not mean that it may hold them at an intermediate point, for such point might be totally inaccessible to the consignee. It must reasonably be held to mean an actual delivery at the point of destination, and although not upon *“*specially designated yards or tracks,” still at some “ available ” point where unloading is possible.

In *Wooley*v. *O. dk N. W. By., supra,*it was held that “ nearest available point ” meant a point where the consignee could have access to the cars to unload them. The court said:

“ When it became apparent that cars could not be taken care of on the designated track, we think it was the duty of the defendant to make delivery at the nearest available point where the cars could be unloaded.

In the instant case there is no allegation that the cars were placed where they could be unloaded. On the contrary, they were held several miles back on defendants’ line, in plaintiff’s switching yards at an intermediate point.

In *Btaten Island Bapid Transit Go.*v. *Marshall, 117 N.*Y. S., 1034, affirmed in 121 N. Y. S., 82, the court said:

“Demurrage contemplates other service than transportation, and can not arise until the full discharge of the plaintiff’s duty as a common carrier.”

Such duty was not fulfilled until the cars were delivered at destination and so placed that they could be unloaded. *Klass Commission Go.*v. *Wabash By.,*80 Mo. App. 164; *Loeb*v. *Wabash By.,*85 S. W. 118; *Lee*v. *Erie By.,*158 N. Y. S. 730; *Scovem c& Baldwin*v. *G., M. & St. P. By.,*189 Ill. App. 126; *Brooks Mfg. Go.*v. *Southern By.,*68 S. B. 243.

It should be noted that so long as plaintiff relied only upon rules 4 and 5 the commission did not rule in its favor. *159It was upon the subsequent discovery of rule 8 that it obtained the commission’s favorable action and now seeks the judgment of this court. It is only in rule 8 that the assessment of demurrage upon the delay of cars at any point other than that to which they are consigned is suggested.

The case of *Menasha Paper Oo.*v. *Chicago & N. W. By*241 U. S. 55, upon which the Interstate Commerce Commission based its ruling and which is plaintiff’s sole reliance, is distinguishable.

In the present case it is not alleged that the sidetrack was at any time full of cars so as to prevent further deliveries. In the *Menasha*case the court said:

“As the paper company used the sidetrack more cars could not have been placed upon it and unloaded than were actually placed upon it and unloaded; that is, about two or three cars a day.”

In the case at bar there is no allegation that the cars were so placed that they could have been unloaded even at Thistle Junction. In the *Menasha*case the railway company “held the cars for unloading.”

The car-service rules in the two cases are not alike. In its first consideration of the case the Interstate Commerce Commission considered all of the rules now before this court except rule 8. But, referring to the commission’s report, the Supreme Court of Wisconsin said in the *Menasha*case, 149 N. W. 751, 758:

“An examination of it (the commission’s report in the present case) will show that the commission in treating the case found no rule similar to the rules of the respondent (C. & N. W. Ey.), which control the instant case.”

Plaintiff later discovered rule 8, but it is not equivalent to the C. & N. W. rule concerning crowded delivery tracks upon which the *Menasha*case was decided, and there were no crowded delivery tracks in the present case.

In the present case the cars were held short of destination, and were not held for unloading, while in the *Menasha*case there was delivery at destination, and telephone notice wof their arrival given, followed by a holding for unloading.

*160The Supreme Court of Wisconsin also declared that the two cases are dissimilar, and in contrasting them pointed out that:

“ In the case at bar the cars reached destination, and notice of their arrival was given by respondent, and the cars were thereafter held awaiting orders.”

The United States Supreme Court also refused to consider the commission’s ruling in the present case as being applicable to the *Menasha*case, 241 U. S., 63.

In *Bemoind-White Goal Go.*v. *G. c& E. By.,*235 U. S., 371, which plaintiff will probably attempt again to rely on, the cars upon which demurrage was allowed were billed for re-consignment, wherein it differs from the case at bar, and the cars were detained in accordance with a practice of 20 years’ standing, whereas no such practice was established in the present case. In the *Berwind-~White*case the cars were simply held at the most convenient point for the purpose of re-consignment and the present question of delivery was not involved. The two cases differ in that there was no recon-signment, actual or contemplated, in the instant case. It was the carrier’s duty to deliver the cars to Milepost 679, as billed, without any orders from the consignee.

It may throw light upon the issue to consider upon whom the loss would have fallen if the cement had become damaged while held at Thistle Junction. A carrier’s liability continues until the goods arrive at destination, and in fact until opportunity has been given the consignee to unload them. *Arkansas Midland By.*v. *Premier Cotton*Mills, 158 $. W., 148; *Lewis*v. *Louisville c& N. By.,*122 S. W., 184.

The carrier’s responsibility for these cars remained complete so long as they were at Thistle Junction.

In *Garrtezo*v. *N. Y. S. <& W. By.,*123 N. Y. S., 173, it was held that the primary duty of a railroad company in carrying goods includes delivery of the goods to the consignee at destination, and the carrier is not entitled to an additional charge for car service until such duty is performed, and that “ constructive delivery ” does not arise until an opportunity for unloading is given.

See also *Staten Island Bapid Transit Go.*v. *Marshall*117 N. Y. S., 1034, affirmed in 121 N. Y. S., 82.

*161In *Wooley*v. *Chi. <& N. W.*By., 136 N. W. 616, the Supreme Court of Wisconsin, the same court that decided the *Menasha*case relied upon by plaintiff, held that the C. & N. W. rules did not authorize the assessment of demurage charges where the cars were not so placed at the “nearest available point ” that they could be unloaded.

The Wisconsin courts’ decisions show the same difference between the *Wooley*case and the *Menasha*case that it pointed out as existing between the one here at bar and the *Menasha*case. In the *Menasha*case the cars were held for unloading and in the other two they were not.

The “ direction ” or request of defendants concerning the placing of cars as alleged in the present petition is also analogous to the same in the *Wooley*case. Plaintiff here alleges that the United States “ directed the delivery of such cars on said switch at times and in number to suit its convenience.” In the *Wooley*case plaintiffs told defendants that they “ wanted the cars placed as soon as possible so that they could unload and avoid teaming expense.”

The court said the language could just as well be construed as expressing a wish as a refusal. So in the present case, defendants’ “ direction ” that cars be placed to suit its convenience had no force but that of a request, and did not constitute a refusal. The *Wooley*case, and not the *Menasha*case, applies to the one at bar. See also *United States*v. *Texas c& P. R.*Co., 185 Fed. 820.

The complaint filed by the Secretary of the Interior having been dismissed by the commission, it is as if no complaint had ever been filed.

Moreover, whether the charges were legally assessed depends upon the construction of the rules. This is a question of law.

Similar tariff rules concerning demurrage were, in a charge to the jury, construed by the court as a matter of law in *United States*v. *Texas and Paeifie Railway,*185 Fed. 820, 822-823. The case of *Menasha Payer Co.*v. *Chi. <& N. W. Ry.,*241 U. S. 55, which plaintiff relies upon, went to the *162United States Supreme Court, and was there decided upon the construction of demurrage rules as a question of law.

A ruling of the Interstate Commerce Commission upon a question of law is not binding upon the courts. *United States*v. *Pennsylvania By.,*242 U. S. 208; *I. O. G.*v. *Alabama Midland By.,*168 U. S. 144; *Louisville, etc. By.*v. *Behlzner,*175 U. S. 648; *Texas (S¡ PacifiG By.*v. *I. O. G.,*162 U. S. 197; *St. L., I. M. & S. By.*v. *United States,*217 Fed. 80,

This court, therefore, if it does not consider the clain barred by the statute of limitations, should construe the rules of the Utah Car Service Association set forth in plaintiffs’ petition and determine whether the facts alleged therein, bring plaintiff’s claim within their provision so as to constitute a cause of action. The rules being promulgated by plaintiff, they should be construed most favorably to defendants. *Staten Island Bapid Transit Go.*v. *Marshall'.*117 N. Y. S. 1034, affirmed in 121 N. Y. S. 82.

*Mr. William G. Prentiss*opposed. *Clark, Prentiss & Clark*were on the briefs.

BarNey, *Judge,*

delivered the opinion of the court.

The question for decision in this case arises upon the demurrer of the defendants to the amended petition of the plaintiff. This suit was before this court once before upon a demurrer to the original petition, which was the same in substance as the amended petition, except that it was therein alleged that the question of demurrage involved had been presented to the Interstate Commerce Commission and a ruling against its allowance made; also said original petition did not set up rule 8, hereinafter quoted, as one of the rules applicable to the handling of freight on the plaintiff’s railway. Said demurrer was sustained by this court * and the petition amended in both of the above particulars as will hereinafter appear.

Briefly stated, said amended petition alleges as follows. That plaintiff is a railroad corporation lawfully doing business in the State of Utah and maintains a station on its line in said State for the delivery of freight in carload lots, *163known as Thistle Junction. During the year 1907 the defendants through the Eeclamation Service undertook certain work known as the Strawberry Valley project in the vicinity of said Thistle Junction, and for the more convenient handling of freight intended for use in that work the plaintiff maintained and operated a switch or siding known as Diamond Switch at milepost 679 on its railway, about 1.5 miles west of said Thistle Junction, at which point the defendants, through said Eeclamation Service, provided an unloading plant and warehouse for the handling of cement consigned to said Eeclamation Service in carload lots. During the months of July and August, 1907, the plaintiff received and transported a large number of cars loaded with cement shipped from Independence, Kans., and consigned to said Eeclamation Service at said “milepost 679, near Thistle Junction,” and was ready and willing to deliver said cars on said Diamond Switch there located from time to time when there was room thereon, but the defendants, through the Eeclamation Service, directed the delivery of said cars on said switch at times and in number to suit its convenience in unloading the same, in consequence of which direction and in order to comply therewith the plaintiff was compelled to hold said cars at said Thistle Junction station, the nearest available point, and thereafter from clay to day to switch them on said Diamond Switch as directed by said Eeclamation Service.

Then follows a statement of the length of time said cars were detained at Thistle Junction in excess of 48 hours in consequence of said direction; and that the demurrage therefor had been demanded of said Eeclamation Service and refused and that the rights of the plaintiff to such demurrage had been presented to the Interstate Commerce Commission which had decided that the same was properly assessed, notwithstanding which decision the Eeclamation Service still refused to pay the same; and this suit is brought to recover the amount of said demurrage.

The plaintiff in its petition sets out certain rules and regulations in force in 1907 governing the handling of freight in carload lots on the plaintiff’s railway system in the State *164of Utah and which had been filed with the Interstate Commerce Commission. Such rules quoted are as follows:

“ Rule 2.

“ Forty-eight (48) hours’ free time will be allowed for the loading or unloading of all cars subject to car service. It being further understood that no car will be allowed more than one period of free time for loading and one period of free time for unloading under one transportation charge. * * * In calculating free time Sundays and legal holidays are excepted. * * *

“Rule 4.

“At the expiration of the free time a charge of one dollar ($1.00) per car per day or fraction thereof must be collected for detention to all cars held for loading or unloading or subject to order of consignors, consignees, or their agents.

“Rule 5.

“ SectioN 1. Cars containing freight to be delivered on carload delivery tracks or private sidings shall be placed on the tracks designated immediately upon arrival, or as soon thereafter as the ordinary routine of yard work will permit. Delivery will not be made on specially designated yard or cracks, except when it is practicable to do so. When such delivery can not be made, on account of such tracks being fully occupied, or for any other reasons beyond the control of the carrier, delivery shall be made at the nearest available point.

“ Section 2. Delivery of cars shall be considered to have been effected at the time when such cars have been placed on the proper private or public delivery tracks, or if such track or tracks already contain such number of cars belonging to the same consignee as prevent prompt delivery, then such cars will be considered as having been placed when the road offering the cars would have delivered them had the condition of such tracks permitted.

“Rule 8.

“ CARS DETAINED EOR VARIOUS CAUSES.

“ Section 1. Cars detained at any point within the territory of this association by reason of being billed to order and awaiting bills of lading or instructions, as to disposition, and cars detained for want of proper shipping instructions, or *165for any cause for which shipper or consignee and not the railroad company is responsible, shall be subject to charges under these rules.”

The first contention of the defendants is that the claim set forth in the amended petition is barred by the statute of limitations upon the theory that it is not now based upon rule 8 above quoted alone, which, as before stated, was not set out in the original petition, and for that reason is a new suit upon a claim which occurred more than six years before the filing of the amended petition. We do not think there is any merit in this contention. The gist of this suit is for demurrage and has been so from its beginning, and though perhaps defectively set out in its original petition — which is doubtful — there was never any doubt as to what was the cause of action in the suit.

As to whether the amended petition states the cause of action against the defendants presents a more difficult question. If it were not for the liberal rule of pleading in practice in this court we might hesitate in answering the above question in the affirmative. Under the rules as to demur-rage as laid down in the cases relied on by the plaintiff the averments in the petition in this case are rather meager and a somewhat unjustifiable economy was exercised, but it has been repeatedly decided by the Supreme Court and this court that the strict rules of pleading are not applicable here, and all that is necessary in setting out a claim is to so state it that the court is advised as to what it is. *United States*v. Barnes, 197 U. S., 146, 154; *United States*v. Behan, 110 U. S., 338-347; *United States*v. Burns, 12 Wall., 246; *Little*v. *United States,*19 C. Cls., 323, 330; *Wood*v. *United*States, 49 C. Cls., 119, 124. We think under these authorities we are justified in holding that the amended petition states a claim for demurrage arising from the fact that the cars of the plaintiff were detained at Thistle Junction in consequence of the action of the Beclamation Service.

We next come to the question whether the rales of the Utah Service Association as quoted justify the alleged charge for demurrage. Buie 8 provides that:

> “ Cars detained at any point within the territory of this association by reason of being billed to order and awaiting *166bills of lading or instructions, as to disposition, and cars detained for want of proper shipping instructions, or for any cause for which shipper or consignee and not the railroad company is responsible, shall be subject to charges under these rules.”

The plaintiff evidently must rely upon the last clause of this rule, that the detention of its cars arose from a cause for which the shipper or consignee and not the railroad company was responsible. The amended petition avers that this detention arose from the direction given by said Reclamation Service to only deliver cars on this side switch at times and in such number as to suit its convenience in unloading, in consequence of which direction, and to comply therewith, it was compelled to hold the cars at Thistle Junction, the nearest available station, and thereafter from day to day set them on the Diamond Switch as directed by the Reclamation Service. The defendants contend that this direction of the Reclamation Service was no justification for the railway company in holding the cars loaded with cement at Thistle Junction, but that it should at least have filled the siding at said switch with the cars loaded with cement for the Reclamation Service, whether the Reclamation Service wished it to do so or not. We can not agree with this contention. It may have been, and quite likely was, more economical to the Reclamation Service to pay the demurrage than to be glutted with these cars, and in any event it is clearly estopped from making any such defense. If the Reclamation Service asked this as a favor, it can not now be heard to take any advantage because this favor was granted.

The cases hereinafter referred to also are applicable to this matter. Rule 4 as well as rule 8 of the Utah Car Service Rules would also seem to apply to just such a case as this, as it is averred these cars were held at Thistle Junction by direction of the consignee.

In the case of *Chicago & N. W. R. Co.*v. *Menasha Paper Co.,*159 Wis., 508, and affirmed by the Supreme Court, 241 U. S., 55, the facts were almost identical with the facts as averred in this case, and both courts held that demurrage should be collected. The cases are so nearly alike that it is hardly necessary to review the one cited. There, as in this *167case, the cars were detained at a near-by siding at the request and for the accommodation of the consignee and were set out on its private switch as asked for. There, as in this case, the consignee’s side track was capable of containing more cars than were actually placed upon. The rules bearing upon this subject were substantially alike in both cases. In that case Mr. Justice McKenna, in delivering the opinion of the court, said, pp.- 62 and 63:

> “ It is somewhat difficult to state succinctly the argument of counsel by which he attempted to give pertinency to the contention based on these rules. We have seen that the sidetrack of the paper company could accommodate about seven cars, but as the company used the track it could handle only two or three cars a day, and hence it did not ask for more. The supreme court of the. State, therefore, decided that the railway company had complied with its obligation to the paper company by complying with such demand and was entitled to charge for demurrage. And answering the con- ' tention of the paper company (repeated here), the court said the railway ‘ was not obliged to do a vain and useless thing by putting seven cars upon the track at one time, and thus prevent the practical handling or unloading of any cars thereon by appellant [paper company] contrary to its orders.’ The court, by such holding, counsel says, decided that ‘ the rules must have a reasonable construction.’ And, further, ‘ This is the crus of the decision and it is absolutely in opposition to all of the decisions of the Interstate Commerce Commission and of the courts and of the spirit and intent of the act to regulate commerce.’ In other words, counsel insists that there should have been an actual filling of the tracks even though this would have prevented their use and have been contrary to the directions of the company, the basis of the contention being ‘ that the rules must be strictly construed and that there must be “definite tariff authority ” for the charges made.’ _ And the conclusion, it is asserted, is supported by all authorities, judicial, administrative, aná legislative. Rigorously applying the test that the exact letter of the statute must be observed, counsel goes so far as to assert that there was an imperative duty upon the railway company to so fill the tracks, and this without orders. And contesting the proposition, decided by the supreme court of the State, that cars arriving at Menasha or Snell’s siding had reached their destination, counsel says: ‘ It was the duty of the railroad to keep the sidetrack filled to its physical capacity before it could hold the cars “at *168the nearest available point.” To hold otherwise would leave it dependent upon the judgment oí the officers of the railroad as to how much unloading the consignee could do, and would therefore result in discrimination and special privileges prohibited by the act to regulate commerce.’ And further: *‘*The carrier was derelict in its duty when it failed to fill the sidetrack .to its capacity as it had not completed its duty as a common carrier until it had placed the cars on the sidetrack of the plaintiff in error.’

> “ We are unable to concur in counsel’s construction of the rules or to hold that it has any such formidable support as he assigns to it. And we content ourselves with the bare assertion, not even pausing to review counsel’s chief reliance, that is, *United States*v. *Denver*& *Rio Grande R. R.,*18 I. C. C., 7. The case had not the breadth given to it. If it had, we should be unable to follow it.”

We think that the above cited case is decisive of the case under consideration. See also *Berwind-White Good Mining Co.*v. *Chicago & Erie R.*Co., 235 U. S., 371.

It follows from the foregoing that the demurrer should be and the same is hereby overruled.

Hay, *Judge;*Downey, *Judge;*Booth, Judge, and Campbell, *GMef*Justice, concur.

*

50 C. Cls., 382.