More than a year after our former decision in this case (253 Mich. 144) plaintiff filed an amended declaration. Subsequently defendant's answer
to the amended declaration was filed including notice of special defenses. Under such notice defendant brought into the case for the first time the defense that it was a carrier engaged in interstate commerce and subject to the interstate commerce act. Notwithstanding this change in the pleadings, the trial judge held as a matter of law, as in the earlier trial, that Lewis, the operator of the crane, was the employee of the defendant railway company, and that it was therefore chargeable with Lewis' negligence, if any. While it was a perplexingly close question, in our former opinion we approved the holding of the trial judge. On this appeal the question is presented whether such holding is affected by the change in the record disclosing that the defendant was engaged in interstate commerce and subject to the regulations imposed thereon.
The shipment of the I-beams involved in this law suit was in carload lots and at carload rates. Such shipment is subject to the following interstate commerce regulation:
"Owners are required to load into or on cars freight for forwarding by rail carriers and to unload from cars freight received by rail carriers carried at carload ratings." Interstate Commerce Regulations Tariffs, Rule No. 27, § A.
The contract for carriage of an interstate carrier must be in accord with the rules and regulations governing interstate commerce. Pennsylvania R. Co. v. Marcelletti, 256 Mich. 411
(78 A.L.R. 923).
"The tariffs and schedules filed with the interstate commerce commission become a part of the contract and as such binding on the parties. To hold otherwise would open wide the door for unjust discrimination. * * * The relations of the shipper and carrier are contractual. * * * In
order to prevent discrimination the law has provided that certain things shall be done in all shipments. Neither the shipper nor the carrier can deviate from them without discrimination which is the important thing inhibited."Thomas Canning Co. v. Southern Pacific Co., 219 Mich. 388, 396;223 Mich. 154.
"In an action for damages to horses shipped by express from one State to another, the contract under which they were shipped is to be construed in harmony with the Federal transportation act, under the regulations, rates, and rules promulgated pursuant thereto by the interstate commerce commission, which, so far as applicable, became part of the contract." Shier v. American Railway Express Co. (syllabus),234 Mich. 505.
Thus, in the instant case, the contract between the shipper and carrier places the obligation of unloading the carload lot upon the shipper or consignee. Had the parties contracted that the carrier without additional charge should unload the shipment, it would have been a violation of interstate commerce regulations and subjected them to the penalty provided. Thus, as a matter of law, as well as a matter of contract, in this interstate shipment the duty of unloading devolved solely upon the consignee. When plaintiff contracted to truck these I-beams from the place of delivery by the carrier to the bridge site, he stepped into the place of the consignee, who was charged with the duty of unloading. At his option he might or might not take advantage of the conveniences afforded by the carrier in unloading the shipment. While in no way obligated to do so, in the instant case the defendant had provided at Flint a Gantric crane, the use of which, together with an operator, was tendered to shippers to aid them in unloading heavy articles.
To hold that the defendant railroad company in so doing was discharging a part of its duty or its contract as a carrier would be to hold that it was acting in violation of interstate commerce regulations. The record in this case will not sustain a conclusion that the carrier contracted to unload this shipment. Instead, in the face of the interstate regulation, the only justifiable conclusion is that the defendant carrier loaned this unloading device and its employee in operating the same to the consignee, in whose place plaintiff was acting in receiving the shipment.
Since our former decision, the Supreme Court of the United States decided the similar case of Denton v. Railroad Co.,284 U.S. 305 (52 Sup. Ct. 141). In that case the contract with the railroad company for carrying mails provided that the railroad company should furnish men necessary to handle the mails, "to load them into and receive them from the doors of railway post office cars," etc. A porter employed by the railroad company carrying mails assisted in the discharge of that portion of the railroad company's contract. Through his negligence Denton was injured. The porter was held to have been acting as the agent of the United States government and not in the discharge of his duties as an employee of the railroad company, and hence such company was not responsible for his negligence. It was there said:
"When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former. This rule is elementary and finds support in a large number of decisions, a few only of which need be cited."
Numerous cases are cited, including Standard Oil Co. v.Anderson, 212 U.S. 215 (29 Sup. Ct. 252), which latter case is extensively quoted, and, together with Driscoll v. Towle,181 Mass. 416 (63 N.E. 922), is distinguished from the case before the court in the following language:
"In each of these cases the facts plainly demonstrated that the work was that of the general master, and that in doing it, the servant had not passed under the direction and control of the person for whom the immediate work was being done, the latter being looked to not for commands, but for information."
The following is approvingly quoted from the Standard OilCase:
"To determine whether a given case falls within one class or the other, we must inquire whose is the work being performed."
Applying this test to the instant case, there is no dispute that under the contract for interstate carriage the duty of unloading the I-beams was that of the consignee and not of the carrier.
In another decision involving an interstate carload shipment it was recently held:
"Upon delivery of the cars at the usual place of delivery of carload shipments of livestock, it was the duty of the plaintiff to take charge of them, unload and look after them; and such assistance in unloading and looking after them as may have been rendered by the employees of the delivering carrier was purely voluntary, and such employee while so engaged was the agent of the owner, and not of the railroad." Columbus G.R. Co. v. Owens, 153 Miss.
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More than a year after our former decision in this case (253 Mich. 144) plaintiff filed an amended declaration. Subsequently defendant's answer
to the amended declaration was filed including notice of special defenses. Under such notice defendant brought into the case for the first time the defense that it was a carrier engaged in interstate commerce and subject to the interstate commerce act. Notwithstanding this change in the pleadings, the trial judge held as a matter of law, as in the earlier trial, that Lewis, the operator of the crane, was the employee of the defendant railway company, and that it was therefore chargeable with Lewis' negligence, if any. While it was a perplexingly close question, in our former opinion we approved the holding of the trial judge. On this appeal the question is presented whether such holding is affected by the change in the record disclosing that the defendant was engaged in interstate commerce and subject to the regulations imposed thereon.
The shipment of the I-beams involved in this law suit was in carload lots and at carload rates. Such shipment is subject to the following interstate commerce regulation:
"Owners are required to load into or on cars freight for forwarding by rail carriers and to unload from cars freight received by rail carriers carried at carload ratings." Interstate Commerce Regulations Tariffs, Rule No. 27, § A.
The contract for carriage of an interstate carrier must be in accord with the rules and regulations governing interstate commerce. Pennsylvania R. Co. v. Marcelletti, 256 Mich. 411
(78 A.L.R. 923).
"The tariffs and schedules filed with the interstate commerce commission become a part of the contract and as such binding on the parties. To hold otherwise would open wide the door for unjust discrimination. * * * The relations of the shipper and carrier are contractual. * * * In
order to prevent discrimination the law has provided that certain things shall be done in all shipments. Neither the shipper nor the carrier can deviate from them without discrimination which is the important thing inhibited."Thomas Canning Co. v. Southern Pacific Co., 219 Mich. 388, 396;223 Mich. 154.
"In an action for damages to horses shipped by express from one State to another, the contract under which they were shipped is to be construed in harmony with the Federal transportation act, under the regulations, rates, and rules promulgated pursuant thereto by the interstate commerce commission, which, so far as applicable, became part of the contract." Shier v. American Railway Express Co. (syllabus),234 Mich. 505.
Thus, in the instant case, the contract between the shipper and carrier places the obligation of unloading the carload lot upon the shipper or consignee. Had the parties contracted that the carrier without additional charge should unload the shipment, it would have been a violation of interstate commerce regulations and subjected them to the penalty provided. Thus, as a matter of law, as well as a matter of contract, in this interstate shipment the duty of unloading devolved solely upon the consignee. When plaintiff contracted to truck these I-beams from the place of delivery by the carrier to the bridge site, he stepped into the place of the consignee, who was charged with the duty of unloading. At his option he might or might not take advantage of the conveniences afforded by the carrier in unloading the shipment. While in no way obligated to do so, in the instant case the defendant had provided at Flint a Gantric crane, the use of which, together with an operator, was tendered to shippers to aid them in unloading heavy articles.
To hold that the defendant railroad company in so doing was discharging a part of its duty or its contract as a carrier would be to hold that it was acting in violation of interstate commerce regulations. The record in this case will not sustain a conclusion that the carrier contracted to unload this shipment. Instead, in the face of the interstate regulation, the only justifiable conclusion is that the defendant carrier loaned this unloading device and its employee in operating the same to the consignee, in whose place plaintiff was acting in receiving the shipment.
Since our former decision, the Supreme Court of the United States decided the similar case of Denton v. Railroad Co.,284 U.S. 305 (52 Sup. Ct. 141). In that case the contract with the railroad company for carrying mails provided that the railroad company should furnish men necessary to handle the mails, "to load them into and receive them from the doors of railway post office cars," etc. A porter employed by the railroad company carrying mails assisted in the discharge of that portion of the railroad company's contract. Through his negligence Denton was injured. The porter was held to have been acting as the agent of the United States government and not in the discharge of his duties as an employee of the railroad company, and hence such company was not responsible for his negligence. It was there said:
"When one person puts his servant at the disposal and under the control of another for the performance of a particular service for the latter, the servant, in respect of his acts in that service, is to be dealt with as the servant of the latter and not of the former. This rule is elementary and finds support in a large number of decisions, a few only of which need be cited."
Numerous cases are cited, including Standard Oil Co. v.Anderson, 212 U.S. 215 (29 Sup. Ct. 252), which latter case is extensively quoted, and, together with Driscoll v. Towle,181 Mass. 416 (63 N.E. 922), is distinguished from the case before the court in the following language:
"In each of these cases the facts plainly demonstrated that the work was that of the general master, and that in doing it, the servant had not passed under the direction and control of the person for whom the immediate work was being done, the latter being looked to not for commands, but for information."
The following is approvingly quoted from the Standard OilCase:
"To determine whether a given case falls within one class or the other, we must inquire whose is the work being performed."
Applying this test to the instant case, there is no dispute that under the contract for interstate carriage the duty of unloading the I-beams was that of the consignee and not of the carrier.
In another decision involving an interstate carload shipment it was recently held:
"Upon delivery of the cars at the usual place of delivery of carload shipments of livestock, it was the duty of the plaintiff to take charge of them, unload and look after them; and such assistance in unloading and looking after them as may have been rendered by the employees of the delivering carrier was purely voluntary, and such employee while so engaged was the agent of the owner, and not of the railroad." Columbus G.R. Co. v. Owens, 153 Miss. 628, 631 (121 So. 265, 62 A.L.R. 521).
Under the record now before the court it must be held, in view of the interstate commerce regulation,
that the railroad company was not responsible for damages resulting from the negligence of its employee, who was loaned to the consignee to aid in unloading this shipment of I-beams.
Judgment is reversed, without a new trial. The case is remanded to the circuit court for entry of the judgment in accordance herewith.
POTTER, SHARPE, FEAD, WIEST, and BUTZEL, JJ., concurred with NORTH, J. CLARK, J., took no part in this decision.