It is obvious that the strike of the defendant's employees, which was in progress from August 5 until November 1, 1934, caused the delay in the switching and placement of all the cars on which demurrage is claimed. As I read the stipulated facts and the freight tariff rules and regulations, it is necessary to determine whether the strike which caused the delay was attributable to the defendant company. It is conceded that Rule 3, Section D, Note 1, only permits cars to be constructively placed when actual placement is prevented by a cause attributable to consignor or consignee. The majority opinion does not determine whether the strike was attributable to the Worden-Allen Company. The trial court found as a conclusion of law that "the switching or placement of the said cars was prevented by the acts of the defendant's employees who were on strike, which was a cause attributable to the defendant, as consignor or consignee within the terms of the said demurrage tariff." The railroad companies contend that they were prevented from making actual placement of the cars by a cause attributable to the consignee, the defendant company, from performing switching services and, that having placed the cars on the private tracks serving defendant's plant, that that amounted to constructive placement within the provisions of the tariff and released them from further obligation to make actual delivery. It is conceded that the nine loaded cars were not delivered to the defendant company at available places for unloading. The four empty cars were delivered at available places for loading and were promptly loaded. But, because the carrier was unable to enter the premises and remove them, these four cars remained at the loading points until the *Page 283 termination of the strike, and they were then returned to the carrier empty. Thus we have the situation here, where in the case of each of the two groups of cars, the carrier in question was unable to carry out its part of the agreement because of an impossibility. It is the duty of the carrier to place cars at proper and convenient places for loading and unloading; such placement is a condition precedent to the right to charge demurrage.
In 13 C.J.S. p. 799, § 340, it is stated:
"Inasmuch as the primary duty of a carrier in carrying goods includes delivery of the goods to the proper person, as shown, supra, § 160, it is generally not entitled to charge demurrage on cars until it has made a proper and sufficient delivery thereof, unless the delivery is not completed because of the fault of the other party or his agent. If the other party is not at fault or in some way responsible therefor, the duty to make a sufficient delivery is not avoided or dispensed with because such delivery has become impossible due to the insufficiency of the carrier's trackage, or because of conditions beyond the carrier's control and for which it is in no way responsible."
In 9 Am Jur. p. 783, § 603, it is stated:
"The right of a carrier to exact demurrage for the detention of cars is dependent upon the proper performance of its duty with respect to the placement of such cars, and default on the part of the shipper or consignee in the performance of his duty with respect to loading or unloading. . . ."
To the same effect see New York, N. H. H. R. Co. v. Porter,220 Mass. 547, 108 N.E. 499; Chicago, R. I. P.Ry. Co. v. State, 77 Okla. 63, 186 P. 234; Hines v. ThomasvilleLight Power Co. 206 Ala. 420, 90 So. 316; ChesapeakeOhio Ry. Co. v. P. T. Board, 100 W. Va. 222,130 S.E. 524, 44 A.L.R. 826; Oregon-Washington R. N. Co. v.McGoldbrick L. Co. 119 Wn. 119, 204 P. 1059.
In the latter case, it was customary for the carrier to deliver cars loaded with logs at a point on the lumber *Page 284 company's spur track where the logs could be unloaded into the lumber company's millpond. The carrier moved eight loaded cars onto the lumber company's spur track, but did not spot them at the proper places for unloading. On the day the cars were so placed, a flood occurred which made it impossible for the railroad to move the cars. Subsequently the carrier brought in twenty-two additional cars, but was unable to spot them at the unloading place for the same reason. The court held that the carrier had not delivered any of the cars to the lumber company and was not entitled to demurrage.
The majority opinion states: "We consider that under the tariffs in force which are within the Interstate Commerce Act and required to be carried out by the parties, irrespective of private agreements, defendant was liable for demurrage. With respect to incoming cars placed upon the private tracks of defendant but not spotted at unloading points, we think it plain that there was a constructive placement for the reason that no placement orders were ever given to the railroad." In connection with the futile attempt of the carrier's switching crew to enter defendant's premises on August 10th, the court found that it was then agreed between the carrier's yardmaster and defendant's traffic manager, that no further attempts should be made on behalf of the plaintiffs or either of them, to enter the premises until requested to do so by the defendant company through its traffic manager. The defendant company had no control over its employees or their sympathizers who successfully resisted the switching crew's entrance to defendant's plant on August 10th. All that happened on that day took place outside defendant's premises and on the right of way of the railroad company. The failure of the switching crew to pass the picket line which held forth on the carrier's right of way is not a cause attributable to the defendant. The defendant company was at all times ready, willing, and able to load or unload the cars. The defendant company had no control over the carrier's switching crew. *Page 285 The plaintiffs were the judges of the effort to be made to reach and enter the defendant's premises. Their effort of August 10th may have been feeble, but they concluded that the resistance of the strikers and their sympathizers excused them from making further effort.
It is conceded that all loading and unloading operations are performed by mechanical means at defendant's plant, and only such cars as are properly placed, can be loaded or unloaded. With the exception of the period of the strike, a switching crew and engine were assigned to defendant's plant each morning of every working day of the year. This was done without waiting for specific daily requests. Upon arriving on the company's premises, the crew was given instructions as to the switching services to be performed, and it then proceeded with the moving and spotting of cars. The majority opinion holds that as to the nine loaded cars the carrier is excused from making actual placement at unloading points because no placement orders as to those nine cars were ever given to the railroad. The fact is that the carrier's switching crew and engine never came onto the defendant's premises to receive switching orders after August 10th, until October 29th, when, with the assistance of a number of policemen, the switching crew entered defendant's premises and removed certain cars which are not involved in either claim for demurrage. These cars were loaded with material for a government order at Fountain City.
The point is stressed in the majority opinion that on August 10th the defendant's traffic manager told the carrier's yardmaster that no further attempt need be made on behalf of the plaintiffs, or either of them, to enter the defendant's premises to render switching services until requested to do so by defendant company through its traffic manager. Before this alleged statement was made by defendant's traffic manager, the carrier's switching crew had already determined that it could not get through the picket line and *Page 286 that further efforts to reach and enter defendant's premises would be futile. There is nothing in the stipulated facts to indicate that there was any change in the strike situation until it ended on November 1st, with the sole exception of the movement of certain cars on October 29th under police protection, so I think the proper inference to be drawn from the conversation between the defendant's traffic manager and the carrier's yardmaster on August 10th was only a recognition by both that the attitude of the strikers and their sympathizers was such that, until the strike ended or abated, it would be useless for the switching crew to make further attempts to enter defendant's premises for the purpose of either spotting the nine loaded cars for unloading, or to remove the four cars which had been loaded and were awaiting removal. I see nothing in this circumstance which would in any way indicate that the strike was attributable to defendant company or in any way excused the carrier from making actual placement of the nine loaded cars so that they would be in accessible positions for unloading or removing the four loaded cars.
The particular tariff rule here applicable is Rule 3, Section D, Note 1, which reads as follows:
"`Actual placement' is made when a car is placed in an accessible position for loading or unloading or at a point previously designated by the . . . consignee.
"If such placing is prevented by a cause attributable to consignor or consignee and the car is placed on the private or other-than-public-delivery track serving the consignee, it shall be considered as constructively placed, without notice."
Under the tariff rules effective, there can be no constructive placement of any cars until actual placement by the carrier is prevented by a cause attributable to consignor or consignee. The plaintiffs cite no authority to the proposition that the strike in the instant case was attributable to *Page 287 defendant company. If the carrier was prevented from doing its job by a cause beyond its control, that does not mean that the cause was attributable to defendant. In none of the cases cited in the majority opinion is the fact that the cause for the detention must be attributable to the consignee or consignor discussed or considered. I am of the opinion, that upon the stipulated facts, the judgment in both cases should be reversed and the complaints dismissed upon the merits.
Mr. Justice FOWLER authorizes me to state that he concurs in this dissent.