Louisville & N. R. Co. v. Dickerson

• Citation: 191 F. 705
• Decision Date: 07 November 1911
• Docket Number: 2,127.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: LOUISVILLE & N.R. CO. v. DICKERSON.

191 F. 705

LOUISVILLE & N.R. CO. v. DICKERSON.

No. 2,127.

United States Court of Appeals, Sixth Circuit.

November 7, 1911

The defendant in error (hereinafter called the plaintiff) filed his petition in the court below as commencement of suit against the plaintiff in error (as defendant therein); the cause of action being stated substantially as follows:

That the defendant, being a common carrier of passengers and property by railroad between points in Tennessee and Pennsylvania and the lines of other carriers connecting with it, and so subject to the provisions of the interstate commerce act, published and made effective a tariff of freight rates thereunder, naming $3.45 per gross ton as the rate on crude phosphate rock in car load lots from St Blaise, Tenn., to Riddlesburg, Pa., by way of Cincinnati Ohio, the Pennsylvania Railroad Company and the Pittsburgh Cincinnati, Chicago & St. Louis Railway Company being named therein as parties to said tariff and acquiescing and concurring in the same as published by the defendant; that while said tariff was in force the plaintiff delivered to defendant at St. Blaise, Tenn., on each of two separate dates a car containing such phosphate rock for shipment to Riddlesburg, Pa., consigned to plaintiff in care of the Huntington & Broad Top Mountain Railroad & Coal Company, at the aforesaid tariff rate, which was noted on the bills of lading of the respective cars; that defendant hauled the shipments to Cincinnati over its own line, and there delivered the same, without plaintiff's consent or knowledge, to the Baltimore & Ohio Southwestern Railroad Company, which was not a party to said tariff, and that upon the delivery to plaintiff of the said consignments at Riddlesburg the Huntington & Broad Top Mountain Railroad &amp Coal Company, instead of collecting the legal rate published and noted upon the bills of lading, exacted and collected from plaintiff sums aggregating $154.81 in excess of the published rate, said excess charges being alleged to be in violation of the interstate commerce act; that plaintiff unsuccessfully demanded of each of the railroad companies which were parties to the tariff, as well as those taking part in the transportation, a refund of the excess charges; that plaintiff accordingly invoked the aid of the Interstate Commerce Commission; that the several carriers appeared and defended, and that the commission made an order authorizing and directing the defendant on or before a fixed date to pay to plaintiff $154.81, with interest, as reparation for the misrouting or diversion of the shipments in question; that the defendant's petition for rehearing was denied by the commission; that defendant has failed and refused to comply with the order of the commission, to enforce which, together with interest and attorney's fee, this suit was instituted. The defendant answered, stating, in substance, sufficient for the purpose of this opinion; that its line terminates at Cincinnati; and that, in order that said cars reach Riddlesburg by way of the joint through rate, they would have to be turned over at Cincinnati to the Pittsburgh, Cincinnati, Chicago & St. Louis Railway, and that defendant intended so to do, but that it was unable to make such delivery because the latter road, when offered the cars, would not and could not receive and transport them by reason of the congestion of traffic thereon; that defendant was thus forced either to indefinitely hold said cars, together with a large amount of other business, in its yards and terminals at Cincinnati until the Pittsburgh, Cincinnati, Chicago & St. Louis Railway should at some indefinite and remote date accept the same, or to forward the same over other roads; that by reason of the movement at that time of an extraordinary volume of traffic defendant's holding the cars in question would have resulted in a congestion and blockade of its own line and facilities; that the situation thus permitted no delay, and that, in view of its obligation to keep its own line open and capable of rendering prompt and efficient service to the public, defendant accordingly made delivery to the Baltimore & Ohio Southwestern Railway Company, on being advised by the latter that it could handle said cars, at the same time furnishing to the latter company complete information with respect to rates, route, consignee, and destination; that the latter company forwarded the cars over its own line and the lines of its connecting carriers to Riddlesburg, Pa., where delivery was made, and collection from the plaintiff had, by the Huntington & Broad Top Mountain Railroad & Coal Company; that each of the bills of lading contained the following provision: 'Every carrier shall have the right, in case of necessity, to forward said property by any carrier between the point of shipment and the point to which the rate is given. All additional risks and increased expenses incurred by reason of change of route in case of necessity shall be borne by the owner of the goods and be a lien thereon'-- that the facts pleaded made out a case of necessity within the meaning of the provision quoted; and that in so changing the route of the shipments under the existing conditions defendant acted within its rights and in the best interests of the plaintiff and the shipping public as a whole, and that the additional expense caused by said diversion should be borne by the plaintiff. Defendant also presented the defense that plaintiff's claim was barred by the limitation imposed by the interstate commerce act, in that the claim was not presented to the commission until more than two years after the taking effect of the act, and until more than two years from the time the claims for reparation accrued; also, that the claim accrued prior to the passage of the act and was not presented within the one year after the act became a law. The plaintiff demurred to the defense other than the statute of limitations as insufficient in law on its face, and as to the latter defense replied that on a date named, which was less than two years after the taking effect of the act on August 28, 1906, he filed with the commission a written communication asking the commission's support in his efforts to collect the excessive freight charges; afterwards, but not within the two-year period, filing his formal complaint with the commission, to which the defendant appeared and answered, with the result set up in the petition. The defendant demurred to this reply as insufficient in law on its face. The Circuit Court sustained plaintiff's demurrer to defendant's answer, and overruled defendant's demurrer to plaintiff's reply; and, the cause being submitted upon pleadings and demurrers, judgment was entered for the plaintiff for the amount of said excess charges, with interest, together with $200 attorney's fee. The correctness of the court's action with reference to the respective demurrers, and in rendering judgment for the plaintiff, both for money damages and for attorney's fee, is challenged by the assignments of error.

E. G. Kinkead (Wm. G. Dearing and Kinkead & Rogers, on the brief), for plaintiff in error.

F. O. Suire (Thompson & Van Sant, on the brief), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge (after stating the facts as above).

1. The Right of Action. In our opinion the only theory on which this suit is maintainable is that the defendant, having accepted the shipments under established tariff rates and over a specified route, is obligated to carry the goods at the rate and over the route specified, and that, having diverted the freight at Cincinnati to a different route, it is liable for the damages thereby occasioned to the plaintiff, viz., the difference between the lawfully established tariff over the specified route and the charges incurred by reason of the change of route. Section 6 of the interstate commerce act (34 St.L. 586) requires that the tariff schedules, in addition to stating the rates and the routes covered thereby--

'shall also state separately all terminal charges, storage charges, icing charges, and all other charges which the commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise affect, or determine any part or the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee.'

The Interstate Commerce Commission, speaking through Commissioner Lane, sustained the plaintiff's right to reparation on the theory above stated, holding that the provision for diversion contained in the bill of lading was ineffective because not contained in the defendant's tariff schedules, as being a regulation affecting tariff charges. The views of the commission were expressed in this language:

'The Louisville & Nashville made a joint arrangement with other carriers for the transportation of phosphate rock from St. Blaise, Tenn., to Riddlesburg, Pa., and published that rate as its rate. The rate was a unit and the route was a unit. In its tariffs the Louisville & Nashville did not reserve the right of diversion to any other route over which a higher rate would necessarily and legally be applicable. To be sure a provision in its bill of lading attempted to do this, but such

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