Baltimore And Ohio Southwestern Railway Company v. New Albany Box And Basket Company
| Decision Date | 13 October 1911 |
| Docket Number | 7,219 |
| Citation | 96 N.E. 28,48 Ind.App. 647 |
| Parties | BALTIMORE AND OHIO SOUTHWESTERN RAILWAY COMPANY v. NEW ALBANY BOX AND BASKET COMPANY |
| Court | Indiana Appellate Court |
48 Ind.App. 647. At 657.
Original Opinion of April 25, 1911, Reported at: 48 Ind.App. 647.
Petition overruled.
OPINIONON PETITION FOR REHEARING.
In a petition for rehearing, it is urged with much earnestness by counsel for appellee that the Floyd Circuit Court had no jurisdiction of the subject-matter of the action, and that therefore this court could not acquire jurisdiction on appeal. If the first proposition is true, then the conclusion is obviously true.
The question is presented for the first time on petition for rehearing. The rules provide that points not made in the original briefs will not be considered on rehearing, but we think the question of jurisdiction is one of such a character that it should be considered by the court at any time while the appeal is pending.
In the original opinion it was held that the complaint stated a cause of action for the collection of a balance due on interstate freight charges. This holding is not questioned but it is now insisted that the action was founded upon an alleged violation of the United States statute known as the "interstate commerce law," and that jurisdiction was in the federal court rather than in the state court. We cannot agree with counsel for appellee in this contention.
It was clearly stated in the original opinion that the freight rate on said shipment was not and could not be a matter of negotiation between the shipper and the carrier. The only agreement that could be entered into by these parties was that which impliedly arose through the tender of the freight by appellee and the acceptance of it by appellant for transportation and delivery at destination. The consideration for this service was fixed by law, and became a part of the agreement. When the appellant undertook to deliver appellee's goods at Hudson, New York, the lawful charge for such service was $ 114, which presumptively was known by both parties. For this charge the carrier was bound to render the service, and for this service the shipper was bound to pay the lawful rate.
The complaint charges that the rate fixed by law, and which appellee was bound to pay, has not been paid in full, and to collect the unpaid balance, this action was brought. The proceeding was not founded upon an...
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