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v. Grant, supra; Carroll v. Sweet, supra; Williams v. Brown, 53 App. Div. 486, 65 N. Y. Supp. 1049; Grant v. MacNutt, 12 Misc. Rep. 21, 33 N. Y. Supp. 62; Murphy v. Levy, 23 Misc. Rep. 147, 50 N. Y. Supp. 682; Smith v. Miller, supra.

The case of Loux & Son v. Fox, 171 Pa. 68, 33 Atl. 190, cited in the opinion of this court, is contrary to the entire trend of the decisions in that State, which are in tenor the same as those in this State (National Bank v. Weil, 141 Pa. 460, 21 Atl. 661); and it is inconclusive, in that the court does not disavow the rule, but affects to be in accord with it, resorting to the pretext of striking out the day of receipt as not to be counted. The court says:

"Considering the hour of the day when the check was delivered to the defendants, it is practically the same as if in express terms it had been made payable on the following day. There is, therefore, no good reason why it should not be treated as received on the 7th, instead of the 6th, of May, 1891."

I do not see that, either by reason of the statute, or any local usages which have existed for years, or any peculiar necessities of the situation, there is sufficient to justify what seems to me to be a departure from the rule which has obtained here and elsewhere since checks were in vogue. Moule v. Brown, 33 Eng. C. L. Rep. 705; Alexander v. Burchfield, 49 Eng. C. L. Rep. 1060.

The judgment should be reversed, with costs, and the complaint dismissed, with costs.

Decision No. 1402.

CRESCENT COAL CO. v. LOUISVILLE & N. R. CO.

(Court of Appeals of Kentucky. March 18, 1911.)
135 S. W. 768.

CARRIERS.

A railway company need not carry freight between points within ordinary switching limits at a given station; but, where it operates a belt line and carries freight between industrial plants thereon for compensation, refusal to carry coal from a mine on such line to one of such plants is unlawful discrimination, though the spur tracks involved are within what the company calls its switching limits, and regardless of the length, location, and proximity of the spur tracks and the character of the plants.

A railway company owes the same duty to furnish transportation facilities to an industrial plant connected with its line by spur tracks that it does to plants situated on the main line.

A railroad company may establish reasonable depots or places at which it will receive and deliver freight and cannot be required to receive or handle it at other places; but it must use for the public convenience all the tracks set apart by it for the transportation of freight, and treat all patrons without discrimination.

A railway company cannot justify discrimination in refusing to carry coal between a mine and an industrial plant on a belt line in a city while carrying other

freight between points on that line on the ground that it obtains an additional haul from the other freight before or after the haul on the belt line.

A general carrier of freight cannot discriminate between shippers or classes of freight.

A railway company operating a belt line cannot refuse to transport coal between a mine and industrial plants on such line because it has never hauled coal before. No length of time or habit of dealing will discharge a carrier's duty to serve the public without discrimination.

A railway company can fix reasonable rates for carrying freight between points on a belt line operated by it, classified according to the different kinds of freight.

A carrier which has published one rate for carrying freight between points on its belt line cannot exact a higher rate for carrying coal from a mine to a consuming plant, though the published rate was fixed in view of an additional in or out haul obtained from ordinary freight.

A dealer cannot recover damages for a carrier's refusal to transport coal arising from his contract to buy the coal to be carried, where the amount of coal to be delivered was optional with the seller, and it does not appear that the dealer made any contracts for resale on the faith of it that caused him loss; but as to another agreement binding the seller to deliver a specified amount the dealer can recover the enhanced cost of delivering coal under contracts for resale made on the strength of such agreement.

Appeal from Circuit Court, Henderson county.

Action by the Crescent Coal Company against the Louisville & Nashville Railroad Company. Decree dismissing the petition, and plaintiff appeals. Reversed for new trial.

Clay & Clay, for appellant. Charles H. Moorman, Yeaman & Yeaman, and Benjamin D. Warfield, for appellee.

CARROLL, J. The appellant, Crescent Coal Company, is the business name assumed by Joe Higdon, who in 1908 was engaged in buying and selling coal in the city of Henderson. The appellee, Louisville & Nashville Railroad Company, was at the time, and is, a corporation organied under the laws of Kentucky and engaged in the business of a common carrier of passengers and freight. Its main line of road runs into and through the city, and in addition to its main line it operates and controls what is called a belt line," running from its main line in two directions through the city. Leading from its main and belt line, there were a number of spur tracks that ran into various industrial plants in the city of Henderson, situated near its main and belt lines of road. These spur tracks were used for the purpose of transporting freight to and from these industrial plants, and were operated by the company as a part of its line of road. The Keystone Mining & Manufacturing Company was engaged in the operation of a coal mine in the city of Henderson, and was connected with the main or belt line by a spur controlled and operated by the appellee company.

In April, 1908, Higdon, in the name of the Crescent Coal Company, conceived the plan of supplying the industrial plants in the city of Henderson that had spur connections with the main or belt line of the appellee company with coal mined from the Keystone mine. His

purpose was to have cars furnished by the appellee company loaded with coal at the mine, and then transferred by the appellee company to the industrial plants in Henderson that had spur connections. With this object in view, he entered into a contract with the Keystone company, by the terms of which he was to be furnished by it during the year beginning July 1, 1908, 20,000 tons of coal, which it was stipulated in the contract should be delivered to him on the spur track at its mine. Another contract made in May, 1908, gave him the right with certain conditions to sell the output of the mine in excess of 20,000 tons. After making these contracts with the Keystone company, he contracted with various industrial plants having spur connections with the line of the appellee company to deliver to them at their plants in car load lots, at a stipulated price, a large quantity of coal. On July 1, 1908, he applied to the appellee company to furnish him cars at the Keystone company's mine to be loaded with coal and hauled by it to the industrial plants, and proposed to pay for the services $4 per car, which would be about 10 cents per ton. The appellee company refused to furnish any cars for this service until July 13, 1908, when it notified Higdon that it would furnish cars but would charge for the service 50 cents per ton. This offer, which was kept open until August 13, 1908, Higdon refused to accept, and on August 13th the appellee company informed him that it would not furnish cars for this service at any price. Thereupon Higdon brought this suit against the appellee company, setting up his contracts, and the action of the appellee in preventing him from fulfilling them, and sought to recover damages to compensate him for the loss he had sustained. The action was brought on the ordinary, or common-law, side of the docket, but on motion of the appellee company was transferred over the objection of the appellant to equity, and, upon hearing, the petition was dismissed.

A number of legal questions are presented by the record, and we will endeavor to dispose of such of them as seem essential to a solution of the matters in controversy. The first, and perhaps the most important, question is: Was the appellee company under a duty as a common carrier of passengers and freight to render this service?

The evidence for appellee conduces to show that the coal mine and the industrial plants located in Henderson to which Higdon desired to deliver coal were all located within what are called the "switching limits" of the appellee company. It is therefore said that it should not be treated as a common carrier or charged with the duty of transporting freight as a common carrier from one point within these limits to another point within them. A common carrier, such as the appellee company was, may undoubtedly have what may be called yard facilities, including switches, spurs, and side tracks for its convenience in the handling, storing, and distribution of its cars and freight, and it would not be obliged as a common carrier to transport from one point to another in these yards, or on these spurs or switches, freight for the convenience of shippers who might desire to have freight hauled from one point on a switch or spur in the yard to another point in the yard. In the use of tracks laid in its yards for its own convenience in handling, storing, and distributing cars and freight, a common carrier cannot fairly be said to be engaged in the

business of a common carrier in the sense that it must receive and deliver as at other points on its line of road freight or passengers. A rule like this would impose an unreasonable duty upon a common carrier and unnecessarily hinder and interfere with the conduct of its business. It is essential in the operation of railroads that they should have at terminals, and other places where the business requires it, yards and facilities that they may use in the conduct of their business, in such a way as not to be inconvenienced by the necessity of receiving and unloading goods for shippers. But we are not inclined to treat what the appellee company terms its "switching limits" in the city of Henderson as coming within the meaning of yards and terminals, such as we have described. The spur tracks to the coal mine and the industrial plants were not constructed, nor were they operated, for the convenience of the appellee company in handling, storing, and distributing its cars, engines, and other property. As we will presently show, they were constructed and were being used as a part of its railroad system, in carrying freight for compensation to and from the plants connected with its main line of road by these spur tracks. It is true these spur tracks were within what it called its "switching limits" and extended to factories and mills situated close to its line of road; but we regard as wholly immaterial, in the consideration of the question before us, the length of the spur track, or the kind of business establishments it connects the line of road with. Nor do we consider it a matter of any consequence how close together spur tracks, such as these, are located, or whether they are upon one part of its line or another. Whether they run to factories or mines in cities or towns, or to industrial plants in country districts, whether they are long or short, or close together or widely separated, they are to be considered a part and parcel of the system constructed and operated in its business as a common carrier, and the public have an interest in their conduct and operation that the carrier must respect. A railroad company owes to establishments connected with its line of road by these spur tracks the same duty that it does to establishments situated immediately upon its main line of road. It is under the same obligation to furnish facilities for transportation to one as it is to the other. It must serve all alike. Nor can a railroad company arbitrarily and without any relation to the use to which it is put designate a part of its track or system as "yards or switching limits" and then say that it owes no duty as a common carrier in this district except such as it may choose to assume, or say that it will or not, as suits its pleasure or convenience, perform service as a common carrier in this territory. A railroad company engaged in the general business of a common carrier cannot without regard to the convenience of the public classify or divide its trackage into divisions or parts and say that on one part it is a carrier and on another it is not. In the discharge of its duties to the public as a common carrier, a railroad company may establish reasonable depots or places. at which it will receive and deliver freight, and cannot be required to receive or handle it at other places; but it must use for the public convenience all the tracks set apart by it for the transportation of freight, and treat without favor or discrimination all persons offering to it freight for carriage. The spur tracks to these various plants in

Henderson were no more a part of its "yards or switching limits" than would be a spur track that connected its main line in a country district with a mill or factory.

It is shown by the evidence that the appellee company in 1908, and for a number of years prior thereto, had been in the habit of transporting car loads of freight from industrial plants in Henderson with spur connections to other industrial plants in Henderson with spur connections, but that it had never performed this service for the Keystone company. For example, it would haul a car load of corn from an elevator, connected with its belt or main line by a spur track, to a mill connected with its main or belt line by a spur track; but it would not haul a car load of coal from the mine to either the elevator or the mill. In explanation of this practice, and for the purpose of showing that it involved a different character of service from that sought by Higdon, it attempted to show, and did so do by its traffic agents, that the service it performed in hauling products from one industrial plant to another, such as from the corn elevator to the mill, was merely auxiliary or incidental to a transportation service that preceded or followed this local movement. Or, in other words, when it hauled for a nominal charge a car load of corn from the elevator to the mill to be converted into foodstuff of some kind, this foodstuff would necessarily be sold to parties outside of Henderson, and therefore it would get what it calls a transportation charge for hauling the food product from the mill at Henderson to the place it was shipped. And so it would be compensated in the transportation haul for the service it rendered in switching the cars from the elevator to the mill at a nominal price. It is said, however, that, if coal was hauled from the Keystone mine to a factory to be there consumed, the carrier could not get another haul out of this coal or the substance to which it was rdeuced, and therefore it had the right to decline to render in the transportation of coal the character of service that it rendered in the transportation of corn. Looking at this quqestion from the standpoint of the traffic manager of the appellee company, it doubtless presented to his mind sufficient reasons why the discrimination should be made. But, when considered in relation to the duties a common carrier owes to the public, it was wholly unjustifiable. A common carrier may under certain conditions hold itself out to the public as being a common carrier of certain articles of freight, and, if it was only engaged in the carriage of specified articles it would not be under any obligation to carry other things. If it carried for every person, who offered it, the articles and things that it held itself out to the public as a carrier of, it could not well be said to be guilty of discrimination. Hutchinson on Carriers, vol. I, §§ 59, 90, 144. But, as the appellee company was engaged in the business of carrying coal, as well as all other articles of merchandise and freight offered to it, it had no right to make any discrimination between shippers, and was obliged to carry for all persons all classes and character of freight offered to it. Bassett & Stone v. Aberdeen Coal & Mining Co., 120 Ky. 728, 88 S. W. 318, 27 Ky. Law Rep. 1122. The argument is further made that it had persistently and uniformly declined to haul coal from this mine to places in Henderson, and this was well known to Higdon when he made the contracts referred to; but this custom did

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