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

• Decision Date: 27 February 1899
• Docket Number: 616.
• Citation: 92 F. 868
• Parties: MURRAY v. CHICAGO & N.W. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

92 F. 868

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

No.616.

United States Court of Appeals, Eighth Circuit.

February 27, 1899

Henry Rickel (E. H. Crocker and J. R. Christie, on the brief), for plaintiff in error.

Lloyd W. Bowers (N. M. Hubbard, F. F. Dawley, N.M. Hubbard, Jr. and Robert Mather, on the brief), for defendant in error.

This is an action to recover damages for overcharges on freight. The material allegations in the petition are that commencing in 1875, and continuing to March, 1887, plaintiff was engaged in buying and shipping live stock and grain purchased in the state of Iowa for shipment to Chicago, Ill.; that he made large shipments during that time over the defendant's road from Belle Plaine and Chelsea, Iowa, to Chicago; that defendant demanded and plaintiff paid to it for these services the regular published tariff rates of freight; that in selling these articles in Chicago the plaintiff was compelled to come into competition with the sale of like articles shipped over defendant's line from said stations and others in the vicinity shipped over defendant's line that, at the time these various shipments were made by plaintiff, defendant was engaged in making and paying drawbacks, rebates, and concessions of freight charges to others shipping like character of freight, and under the same circumstances and conditions, over the same line of road, as were shipped by plaintiff, and from the same stations, to an amount equal to $32 per car load; that the freight carried by defendant for others was carried under the same circumstances and conditions as that transported for plaintiff; that defendant, at the time these shipments were made by plaintiff, kept posted at its stations freight tariff lists showing the tariff rates of freight for the transportation of such articles from its stations to Chicago, and informed plaintiff at the time he made his shipments that no deviations were made from these rates, and no rebates, drawbacks, or concessions from the posted rates were made to any shippers, and that plaintiff had equal rates and proportions of rates with other shippers from its stations to Chicago, and that no discriminations were made against him; that plaintiff believed these statements and relied on them, but that they were untrue and fraudulent, and that defendant was in fact at that time making such discriminations in favor of other shippers; that defendant fraudulently concealed that fact as to the giving of rebates; that plaintiff only ascertained the facts within 18 months before bringing suit. The circuit court sustained the demurrer to the petition upon the ground that the action was barred by the statute of limitations. On this point Judge Shiras, who heard the case at the circuit, said: 'The ordinary rule is that the statute begins to run when the right of action is completed. Does the case fall within any exception to this rule? The provision of the statute applicable to the case is the general one, to wit, ' and all other actions not otherwise provided for in this respect, within five years.' Code Iowa, Sec. 2529. By Id. Sec. 2530, it is declared that, 'in actions for relief on the ground of fraud or mistake, and in actions for trespass to property, the cause of action shall not be deemed to have accrued until the fraud, mistake or trespass complained of shall have been discovered by the party aggrieved'; but it is settled that this statutory exception is not applicable to cases of the character of that now under consideration. Boomer Tp. v. French, 40 Iowa, 601; Carrier v. Railway Co., 79 Iowa, 80, 44 N.W. 203. It is, however, claimed by plaintiff that, under the principles of the common law, it will not be held that the cause of action has accrued until actual discovery of the fraud or concealment has been made. In Boomer Tp. v. French, supra, the supreme court of Iowa held that where a treasurer of the district, by false and fraudulent entries upon his books, concealed the fact of a misappropriation of a sum of money coming into his hands, the statute did not begin to run until discovery of the fraud thus practiced. In Carrier v. Railway Co., supra, the supreme court of Iowa held the common-law exception applicable, upon the authority of Boomer Tp. v. French; stating, however, that, 'if the question was before us for the first time, we might hesitate to declare the rule announced in Boomer Tp. v. French.' The conclusion reached in Carrier v. Railway Co. is followed and affirmed in Cook v. Railway Co., 81 Iowa, 551, 46 N.W. 1080. These decisions are based, not upon a construction of the provisions of the Iowa statute, but upon the view therein taken of the rule of the common law; and the conclusion reached is not, therefore, binding upon the courts of the United States when they are called upon to construe the common law, and apply its principles to cases arising between citizens of different states. Railroad Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 62 F. 24, 44.'

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge (after stating the facts).

At the threshold of this case we are confronted with a question of jurisdiction. It is said this is a case that involves the construction of the constitution of the United States, for the reason that the case presents the question whether there is any common law of the United States regulating interstate transportation charges, and that the writ of error should have been issued from the supreme court of the United States, and not from this court. Some phases of this question have recently been much discussed in other jurisdictions, and were fully considered by the learned trial judge in this case. 62 F. 24. We do not feel called upon to indulge in any extended consideration of the question. For more than a century the federal courts, in the absence of a statute or other obligatory rule of decision, have had recourse to the common law for rules of decision in the trial of causes in those courts, and have, in cases where that law furnished an appropriate rule of decision, rested their judgments upon it. The same may be said of the admiralty law, the law merchant, the principles of equity jurisprudence, and, in a restricted and qualified sense, of the civil law. It never was supposed that the federal courts were denied the privilege of resorting to any or all of these sources of information for the purpose of enlightening their judgment upon any question presented for their determination in the trial of a cause. It has always been assumed that the federal courts were endowed with a power and jurisdiction adequate to the decision of every cause, and every question in a cause, presented for their consideration, and of applying to their solution and decision any rule of the common law, admiralty law, equity law, or civil law applicable to the case, and that would aid them in reaching a just result, which is the end for which courts were created. If a case is presented not covered by any law, written or unwritten, their powers are adequate, and it is their duty to adopt such rule of decision as right and justice in the particular case seem to demand. It is true that in such a case the decision makes the law, and not the law the decision, but this is the way the common law itself was made and the process is still going on. A case of first impression, rightly decided to-day, centuries hence will be common law, though not a part of that body of law now called by that name. It was implied in the very act of their creation that the federal courts would appeal to the common law as their guide in cases where it was applicable. A decision rested on that law no more raises a constitutional question than a decision based on the law merchant, the admiralty law, the equity law, or on the recognized and fundamental principles of right and justice in a case of first impression. We are all of the opinion that a constitutional question is not presented every time the court has occasion to apply the well-settled rules of the common law regulating and defining the rights, duties, and obligations of common carriers, whether the carriage be intrastate or interstate.

The suit was begun on August 25, 1892, more than 17 years after the first,...