Hocking Valley R. Co. v. New York Coal Co.

• Decision Date: 06 November 1914
• Docket Number: 2453.
• Citation: 217 F. 727
• Parties: HOCKING VALLEY R. CO. v. NEW YORK COAL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

217 F. 727

HOCKING VALLEY R. CO. v. NEW YORK COAL CO.

No. 2453.

United States Court of Appeals, Sixth Circuit.

November 6, 1914

Lawrence Maxwell, of Cincinnati, Ohio, for plaintiff in error.

Judson Harmon, of Cincinnati, Ohio, and L. G. Addison, of Columbus Ohio, for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and EVANS, District Judge.

KNAPPEN Circuit Judge.

The New York Coal Company sued the Hocking Valley Railroad Company to recover damages for the withholding from January 12, 1903, to November 29, 1904, of certain switching connections between plaintiff's mine and the Snow Fork branch of defendant's road, in Hocking county, Ohio. Defendant demurred on the ground that the action was barred by the statutes of limitation and that the petition stated no cause of action. The demurrer was overruled, defendant answered, its pleas of the statutes of limitation were demurred to, and demurrer sustained. On trial, plaintiff recovered verdict and judgment.

The questions involved, aside from rejection of the two defenses mentioned, will sufficiently appear in the course of this opinion. The petition rested defendant's alleged duty upon the 'laws of the United States' as well as the Ohio statutes. The court below has throughout treated the action as based solely on section 3373-1 of the Revised Statutes of Ohio, which is printed in the margin. ^[1]

In support of its plea of limitation defendant invokes section 11225 of the General Code of Ohio, which provides a limitation of one year to an action 'upon a statute for a penalty or forfeiture,' as well as section 11224, which requires an action for 'an injury to the rights of the plaintiff not arising on contract' to be brought within four years. The suit was brought January 9, 1909. If either of the two statutes mentioned applies, the action was barred. If, however, the action is upon 'a liability created by statute other than a forfeiture or penalty,' and so falls within section 11222, which allows six years for beginning suit, the action was begun in time.

We think it clear that section 3373-1 is not a penal statute within the limitation laws of Ohio. It provides no penalty or forfeiture at the instance of, or for the benefit of the public. The right of action is given only to the injured person, and is purely remedial in nature. Huntington v Attrill, 146 U.S. 657, 667, 668, 13 Sup.Ct. 224, 36 L.Ed. 1123; City of Atlanta v. Chattanooga Foundry & Pipe Works (C.C.A., 6th Cir.) 127 F. 23, 28, 29, 61 C.C.A 387, 64 L.R.A. 721; Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 397, 27 Sup.Ct. 65, 51 L.Ed. 241; affirming the case last cited. It is not rendered penal by the fact that it provides a minimum recovery of $500 'for any violation of this section,' or, as expressed in Railway Co. v. Wren, 78 Ohio St. 137, 84 N.E. 785, 'if discrimination be proved.' Brady v. Daly, 175 U.S. 148, 20 Sup.Ct. 62, 44 L.Ed. 109, is directly in point. The statute there involved related to infringement of copyrights on dramatic compositions, and provided for the assessment of damages 'at such sum, not less than one hundred dollars for the first, and fifty dollars for each subsequent performance, as to the court shall appear to be just.'

'Where the statute provides in terms, as the one before us does, for a recovery of damages for an act which violates the rights of the plaintiff, and gives the right of action solely to him, the fact that it also provides that such damages shall not be less than a certain sum, and may be more, if proved, does not, as we think, transform it into a penal statute.'

The authority of the cases cited is in no way weakened by anything said in Parsons v. Chicago & Northwestern Ry. Co., 167 U.S. 447, 455, 17 Sup.Ct. 887, 42 L.Ed. 231, which was a case arising under the Interstate Commerce Act. Indeed, a statute may be penal as to one party and remedial as to another. Brady v. Daly, supra, 175 U.S.at page 155, 20 Sup.Ct. 62, 44 L.Ed. 109.

It is also clear that four-year limitation (section 11224) does not apply, if the action is upon 'a liability created by statute other than a forfeiture or penalty. ' Seymour v. Railway Co., 44 Ohio St. 12, 17, 18, 4 N.E. 236. Under section 11222 a liability created by statute is 'a liability which would not exist but for the statute. ' Hawkins v. Furnace Co., 40 Ohio St. 507, 515.

The District Judge, in his opinion upon the demurrer to plaintiff's petition, followed the construction of section 3373-1 which he regarded as adopted in Railway Co. v. Wren, supra, viz., as imposing upon railroad companies a two-fold obligation, in requiring them to extend to all persons: First, the same and equal opportunities and facilities for receiving and shipping freight of all kinds of the same class; and, second, the same and equal opportunities and facilities for receiving and shipping freight of the same kind and of the same class with respect to freights which it, or any of its officers or stockholders, own or are interested in. We shall, for convenience, speak of these two requirements as the first and second clauses respectively.

Defendant denies that the statute was so construed in the Wren Case, and contends that the second clause adds nothing to the first, 'except to emphasize the intent of the Legislature that opportunities and facilities concerning freights of which the company or any of its officers or stockholders are the owners, or in which they have an interest, are not to be excepted. ' The syllabus, which contains the authoritative decision of the court, states that:

'1. It is the duty of a railroad company both under the common law, and by statute in this state-- section 3373-1, Revised Statutes-- to extend to all persons, without favoritism or discrimination equal opportunities and facilities for receiving and shipping freights of all kinds of the same class.'

If the broad right of action mentioned in the syllabus, or contained in the first clause, was one created by statute, it is immaterial to the question of limitation which of the two constructions is followed, that adopted by the court below or that of defendant. Plaintiff's substantial grievance, as submitted to the jury, is that it was denied a switching connection from its mine to defendant's railroad, whereby coal in car load lots could be shipped from the mine to and upon defendant's main line of railroad, although such connection had been given to the Buckeye Coal & Railroad Company under similar conditions and with respect to the same class of freights. The question is whether the asserted obligation to furnish 'the same and equal' switch track connections existed at the common law, or whether it is merely a creature of the statute invoked.

At the common law railroads were obligated to furnish equal opportunities and facilities for shipping freight to the extent, at least, of carrying for all who applied, in the order of application, and at reasonable rates; the weight of authority in this country being in favor of equality of charge to all for similar services (Interstate Commerce Commission v. B. & O.R.R. Co., 145 U.S. 263, 275, 12 Sup.Ct. 844, 36 L.Ed. 699); although it was said by Mr. Justice Brewer, in Parsons v. C. & N.W.R.R. Co., supra, 167 U.S.at page 455, 17 Sup.Ct. 887, 42 L.Ed. 231, that equality of charge was not required. See, to the same effect, Great Western Ry. Co. v. Sutton, 4 Eng. & Irish App. 226, 257. But the liability here in question is not merely to receive and ship freight. It is to make a switching connection whereby the railroad company would be required to operate an additional switch, with its attendant dangers and delays to its other traffic, and would be compelled either to run its own engines and cars over a piece of track which it had neither constructed nor accepted, or to permit the mine owner to operate cars onto and over the railroad company's tracks.

No authorities have been cited, and we have found none, directly asserting the common-law existence of this obligation. Railway Co. v. Larabee, 211 U.S. 612, 29 Sup.Ct. 214, 53 L.Ed. 352, cited by defendant, is readily distinguished in that no obligation to create a new connection was there involved, but only the hauling of traffic over existing tracks. The railroad company was merely compelled to give the Larabee Company the same services which it had previously given without objection. Nor does Railway Co. v. Wren, supra, in terms declare a common-law duty to give equality in switching connections. The court does say that the first clause of the statute is merely declaratory of the common law, but even that proposition was not involved in the case. Moreover, the specific obligation there in question related only to the furnishing of cars to shippers, and the question presented here was not mentioned.

Of course, this court is not bound by the decision of a state court as to what the common law is. The authorities, so far as they have come to our attention, are, at least inferentially or by analogy, opposed to the common-law existence of this obligation. Thus, in United States v D., L. & W.R.R. Co. (C.C.) 40 F. 101, Judge Wallace, in a case at circuit involving the obligation of a railroad company under the Interstate Commerce Act to transport cattle in cars of a special construction belonging to a transportation company, held that it was 'no part of the common-law obligation of railway companies to furnish the same facilities or instrumentalities of transportation to all alike. ' In Wisconsin, etc., R.R. Co. v. Jacobson, 179 U.S. 287, 296, 21 Sup.Ct. 115, 45 L.Ed. 194, Mr. Justice Peckham said that at common law the courts would be without power to make the order which was made in that case, which required two railroads to provide at...