Chicago & N.W. Ry. Co. v. Ziebarth

• Decision Date: 05 September 1917
• Docket Number: 4816.
• Parties: CHICAGO & N.W. RY. CO. v. ZIEBARTH.
• Court: U.S. Court of Appeals — Eighth Circuit

245 F. 334

CHICAGO & N.W. RY. CO. v. ZIEBARTH.

No. 4816.

United States Court of Appeals, Eighth Circuit.

September 5, 1917

A. K Gardner, of Huron, S.D., for plaintiff in error.

Caldwell & Caldwell, of Sioux Falls, S.D., for defendant in error.

Before HOOK, SMITH, and STONE, Circuit Judges.

STONE Circuit Judge.

This is an action by a carrier against a shipper for the amount of an undercharge on an interstate shipment. The case was presented upon the pleadings and an agreed statement of facts. The writ of error is from a judgment dismissing the complaint, as barred by limitation of the state statute.

A single question of law is involved: Can a state statute of limitations operate to bar a recovery for an interstate freight undercharge? There is no controversy that the South Dakota statute of limitations is an effective bar to this action, if it is applicable. The railway company claims it does not apply for several reasons. It contends that 'where the liability is created by positive provisions of statute, and not by the act of the parties, the statute of limitations cannot be pleaded. ' We do not know any reason for such a rule, and the authorities cited are not to that effect. They, and many others like them, follow the rule that liabilities in the nature of specialties do not come within the wording of the statute of King James nor those patterned thereafter. But that is merely a matter of the meaning and compass of the particular statute. The South Dakota statute here involved (Code of Civil Procedure of the State of South Dakota, Sec. 60) goes further, and includes 'an action upon a liability created by statute, other than a penalty of forfeiture. ' The liability here sought to be enforced is in the nature of a specialty since it finds its being in the statute. It would not come within the statute of King James, but the above-quoted South Dakota statute includes it.

The company further contends that Congress did not intend the state statutes of limitation to apply to actions of this character, because such would destroy the uniformity at the basis of the commerce legislation, and because the collection of tariff undercharges is not simply a right given to the carrier, but a positive duty imposed upon it to collect and upon the shipper to pay such.

The claim of lack of uniformity, if state statutes of limitation were applied, is based upon the varying periods of limitation existing in the different states. The state statutes of limitation do differ as to the periods within which suits may be brought. The commerce statutes are almost dry of any attempt at limitation, and as to this character of cases entirely so. Therefore the choice is between state limitations and no limitations. Authority has decided that the state statutes apply. This court, in Murray v Chicago & Northwestern Railway Co., 92 F. 868, 35 C.C.A 62, decided the claim of a shipper for damages because of discriminatory rebates was barred by the state statute. In Ratican v. Terminal Railroad Ass'n (C.C.) 114 F. 666, Judge Adams, lately a very learned judge of this court, but then of the Circuit Court, decided the same point in the same way, saying:

'The Interstate Commerce Act prescribes no limitation of time within which actions based thereon shall be instituted. Such being the case, the statute of limitations of the state in which the action is brought must apply and control.'

In Meeker & Co. v. Lehigh Valley R.R., 236 U.S. 412, 35 Sup.Ct. 328, 59 L.Ed. 644, Ann. Cas. 1916B, 691, which was by a shipper for reparation because of discriminatory and of extortionate charges falling within section 16 of the Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 384), as amended (Act June 29, 1906, c. 3591, Sec. 5, 34 Stat. 590 (Comp. St. 1916, Sec. 8584)), and controlled by the national statute in the nature of a limitation applying to suits by shippers, Mr. Justice Van Devanter clearly intimates the application of local statutes of limitation where the federal statute has not made provision. He says (236 U.S. 424, 35 Sup.Ct. 333, 59 L.Ed. 644, Ann. Cas. 1916B, 691):

'The words of the proviso make it certain that the amendment was to reach claims already accrued as well as those thereafter accruing. And while there doubtless was no purpose to revive claims then barred by local statutes, it is evident that Congress intended to take all other claims out of the operation of the varying laws of the several states and subject them to limitations of its own creation which would operate alike in all the states. * * * The proviso was in the nature of a saving clause, and while, as before observed, it probably was not intended to revive claims which were then barred by applicable local laws, we think there is no warrant for saying that it was not intended to include claims accrued more than two years before the amendment.'

Nor is this expression weakened by the case of A. J....