through said city; that leading from said railway track to the plant of the plaintiff is a side-track, constructed for the accommodation of the plaintiff in receiving and shipping its commodities to and from said plant; that the defendant has refused longer to place cars on said side-track at plaintiff's plant containing goods consigned to plaintiff, thereby compelling plaintiff to truck the goods from cars consigned to it, shipped over defendant's road, from the station of the defendant, at great expense and inconvenience to plaintiff. And the petition also alleges that in one instance defendant wholly refused to allow plaintiff to take the goods thus consigned to it from one of said cars.

The prayer of the petition is, that the Court order the defendant to place all of the cars consigned to the plaintiff on said side-track, that shall thus be in the hands of the defendant consigned to plaintiff.

The answer filed by the defendant to this petition admits the existence of the plaintiff and its plant at the location named, also said side-track, and the existence of the defendant and its main track in connection with said side-track; and it admits it has refused and does refuse to longer place cars consigned to the plaintiff from various shippers on said side-track at plaintiff's plant. It admits that it refused to let the plaintiff have the goods in the particular car in question. And the answer sets up as an excuse or reason for its refusal that at and a long time before so refusing to comply with the demands of the plaintiff, it belonged to a Railroad Car Service Association, formed for the better protection of the shipping public and railroads, forming a part of such association to better expedite the railroad shipping business for the general public.

And the answer sets up that said Car Service Association had promulgated certain rules governing the unloading by consignees of cars in their hands from consignors; that among said rules is one which provides in substance that the consignee shall within a certain number of hours unload each car thus consigned to it by the consignor from the de

fendant's road and said other roads from the said association, and on failure so to do said consignee should pay a certain amount of money known as demurrage for such delay. A further rule of such association provides, that should any consignee fail to pay such demurrage, any one of said railroads should have the right to refuse to longer place any goods consigned to such shipper in arrears, on its side-track, until such delinquent demurrage due on other cars was paid. Another rule of said Association provides, that any one of said railroads should have the right to refuse to let the consignee take from any car consigned to such consignee, goods, where the same were not unloaded in the time limit provided by the Association's rules until the demurrage was paid; and the defendant claims that under these rules and by virtue thereof, it has refused, still refuses, and proposes to refuse hereafter to place any of said cars consigned to the plaintiff on said side-track until such delinquent arrearages are all paid on former cars, and it says that it refused and still refuses to allow said plaintiff to take the goods from said particular car at its depot, because of arrearages of demurrage due thereon, until the same shall be paid.

It has been held by practically all of the courts of the land, where the question has arisen, and so often, that car associations of the character named are legal, and their rules legal, if reasonable, that it is useless to cite authorities upon that proposition. On this all the text-writers who have touched this subject agree.

The only question for determination on this demurrer is: Are these particular rules, under which the defendant has refused to comply with the requests of the plaintiff, reasonable?

When I first began to investigate this question, my impressions were against their reasonableness; but on consideration of the authorities, while none are exactly in point as to facts, I have reached the conclusion that they are reasonable. An exceedingly instructive authority, and the leading one in this country, was cited by counsel for defendant. It is a Kentucky case, the case of The Kentucky Wagon Manufacturing Co. vs. Louisville & Nashville R. R. Co., 98 Ky. 152, S. C., 50 Am. & Eng. Cases 90.

It seems to me that the reasoning in that able opinion, in which large numbers of authorities are reviewed, with reference to the reasonableness of rules of traffic associations, is irresistible. I commend its careful reading to those interested in this important subject. While not exactly in point, so far as the facts are concerned, yet in principle it supports the contention of counsel for the defendant in this case. There is also a case in Illinois, known as Bowen W. Schumacher vs. Chicago & North Western Ry. Co., which throws light on this question.

In the unloading by the consignee of railway freight cars, there are three classes whose rights must be taken in consideration; first, the consignee; secondly, the railroads; thirdly, the shipping public.

The failure on the part of the consignee to unload a car within a certain time, works an injury to the railroad, for its car is thereby for the time being put out of use; and it works an injury to other consignors for the time being, for the reason that they lose the benefit of such car oftentimes, when there is a glut on the roads.

Expedition alone on the part of the consignee in unloading a car within a certain time can obviate these injuries to the other two classes named.

One of the objects of a traffic association on the part of railroads is to correct the abuse of many consignees who, through negligence or oversight, would otherwise retain cars an unreasonable length of time. To hold that the railroad should be compelled to resort each time to a suit at law to recover demurrage where the consignee has failed to unload within a reasonable length of time, and that this alone is ample leverage on the consignee for the benefit of the other two classes, in my judgment comes short of the mark in affording an adequate remedy at law. It has been found by actual experience over the country that there is a disposition on the part of many consignees to forget that the cars held by them an unreasonable length of time are greatly needed by other consignors and the railroads. And it seems to require very strict rules in order to keep cars moving for the great public against such consignees.

If a consignee desires to have cars placed upon a private switch for its better accommodation, it should be willing to unload such cars within a reasonable time, and I see no injustice in the rule promulgated by a car association that leaves it optional with the railroad company to which it is in arrears for former demurrage to say it will not place cars longer upon such side-track until the former demurrage on other cars is paid. A consignee who knows that this rule will be enforced, will be certain to unload the cars within the prescribed reasonable length of time, or at once pay up the demurrage on failure so to do.

In my judgment the great shipping public is greatly benefited by a rule of this character. It should ever be borne in mind that a rule of law should be one that works out the greatest good to the greatest number. I also hold that the rule requiring the payment of demurage on a car at the station of the railroad belonging to such association before the consignee can remove the goods, is reasonable. It would hardly be fair to compel the railroad company to go to law each time in order to recover such demurrage. And so I hold that these rules are reasonable, that the answer sets up a good defense, and the demurrer should be and is overruled.

IN THE CIRCUIT COURT, SUMMIT COUNTY. STATE OF OHIO.

No. 665, (11419) April Term, 1905.

6 Cir. Ct. Rep. N. S., 505.

OPINION OF THE COURT.

THE THOMAS PHILLIPS COMPANY, Plaintiff,

VS.

THE ERIE RAILROAD COMPANY, Defendant.

MARVIN, WINCH AND HENRY, JJ.

Appeal from the court of common pleas of Summit County.

WINCH, J.:

Plaintiff brought its action against the Railroad Company, praying that the latter be ordered and directed to immediately deliver upon the plaintiff's switch certain cars consigned to plaintiff and laden with merchandise belonging to it, and that the railroad company be further ordered and directed to receive from certain other railroads and at once deliver upon said switch such further cars consigned to plaintiff as might in the future arrive, either upon such other railroads, or its own.

By an amended and supplemental petition plaintiff asks damages alleged to have been occasioned by the railroad company's delay in delivering said described cars upon said switch.