New York, N.H. & H. R. Co. v. Salter

Decision Date30 July 1926
Citation104 Conn. 728,134 A. 220
PartiesNEW YORK, N.H. & H. R. CO. v. SALTER.
CourtConnecticut Supreme Court

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by the New York, New Haven & Hartford Railroad Company against J. Frank Salter to recover certain freight charges and the federal war tax thereon, alleged to be due on coal shipments delivered by plaintiff to defendant. Verdict and judgment for plaintiff for $909, and defendant appeals. No error.

George E. Beers and Albert M. Herrmann, both of New Haven, and Alfred Coit, of New London, for appellant.

Norman S. Buckingham, of New Haven, for appellee.

MALTBIE, J.

The plaintiff is suing to recover a balance of freight charges it claims to be due upon certain shipments of coal from Pennsylvania to the defendant at Groton, Conn. While the amount claimed is made up by adding together the balances due on various shipments, no one of which, if separately made the subject-matter of an action, would be within the jurisdiction of the court of common pleas, the complaint states that amount as constituting one debt, and we must assume that, by agreement or custom, the parties treated the account as a continuing one, and the debt due at any one time as the total of the various charges that had been incurred. So regarded, the action was within the jurisdiction of the court. Main v. First School District, 18 Conn. 214; Nichols v. Hastings, 35 Conn. 546; Morse v Frost, 54 Conn. 84, 6 A. 182.

It was agreed that the shipments were all made and delivered to the defendant between November 29, 1920, and March 28, 1921, and that the defendant had paid the plaintiff such sums as would be due in accordance with the tariff of freight charges for this route in effect previous to November 18, 1920, but refused to pay additional amounts required to make the charges comply with a tariff schedule for the route, filed with the Interstate Commerce Commission, to be effective on that day. When the case came on for trial, the plaintiff produced in evidence certified copies of the schedule of rates on file with the commission and in effect before November 18, 1920, and of a supplemental schedule on file with the commission, to be effective on that day, and thereupon rested its case. The defendant offered no testimony. The principal question of law in the case is, Was the plaintiff entitled to recover the charges stated in the supplemental schedule without offering proof that that schedule was effective against the shippers other than the production of a copy certified by the secretary of the Interstate Commerce Commission as on file with it?

The statutes of the United States provide that no change shall be made in the rates, fares, and charges which have been filed by a common carrier with the Commission, " except after thirty days' notice to the Commission and to the public published as aforesaid." U.S. Comp. Stat. § 8569. The defendant claims that under this provision no changes in rates are valid unless they have been published by the carrier by placing them in its stations and offices open to public inspection for the period stated, while the plaintiff claims that the statute only requires that they be filed with the Commission. We incline to the position taken by the defendant. The statute begins with a provision for the filing of the schedules, but it then continues with a requirement that they be printed and kept open to public inspection, and thereafter in two instances it speaks of the schedules as these " filed and published" ; and we may not assume that Congress used the word " published" without meaning thereby to convey some intent. Louisville & N. R. Co. v. Mottley, 219 U.S. 467, 475, 31 S.Ct. 265 55 L.Ed. 297, 34 L.R.A. (N. S.) 671. So to hold that only filing with the Commission was requisite would be practically to disregard one of the main purposes of this legislation, information to those who contemplate transportation of freight or passengers as to the charges to be incurred ( Louisville & N. R. Co. v. Mottley, supra, page 467 ), for shippers ordinarily rely for such information upon the facilities at hand in the local offices of the carrier, and few are in a position readily to learn of the contents of the records at the office of the Interstate Commerce Commission. If we have recourse to the statute as originally enacted, the conclusion seems inevitable that by publication was meant the giving of notice to the public of changes in rates by schedules in the stations and offices of the carrier, and there is nothing in the changed language of the statute in its present form to indicate an intent to alter the meaning of the law in this regard. 24 U.S. Stat. at Large, 380. While we are aware of no decision of the Supreme Court of the United States upon the precise issue, the language of its opinions strongly suggests such a construction of the Act (United States v. Miller, 223 U.S. 599, 604, 32 S.Ct. 323, 56 L.Ed. 568; Texas & Pacific Ry. Co. v. Cisco Oil Mill, 204 U.S. 449, 452, 27 S.Ct. 358, 51 L.Ed. 562; Louisville & N. R. Co. v. Mottley, 219 U.S. 467, 476, 31 S.Ct. 265, 55 L.Ed. 297, 34 L.R.A. [N. S.] 671; Armour Packing Co. v. United States, 209 U.S. 56, 80, 28 S.Ct. 428, 52 L.Ed. 681; New York Central & H. R. R. Co. v. United States, 212 U.S. 500, 504, 29 S.Ct. 309, 53 L.Ed. 624), while the reason given by that court for holding that the keeping of two copies of the schedules posted in every railroad station was not a prerequisite to the validity of rates readily distinguishes the provision in the law requiring that to be done from the one we are considering (Texas & Pacific Ry. Co. v. Cisco Oil Mill, supra), and the cases which hold that shippers are bound with notice of the rates on file with the Commission patently have reference to rates which have been duly established ( Boston & Maine R. R. v. Hooker, 233 U.S. 97, 111, 34 S.Ct. 526, 58 L.Ed. 868, L.R.A. 1915B, 450, Ann.Cas. 1915D, 593; Louisville & N. R. Co. v. Maxwell, 237 U.S. 94, 97, 35 S.Ct. 494, 59 L.Ed. 853, L.R.A. 1915E, 665; Chicago & Alton R. Co. v. Kirby, 225 U.S. 155, 166, 32 S.Ct. 648, 56 L.Ed. 1033, Ann.Cas. 1914A, 501). If we turn to the decisions of state courts, we find that the preponderance of authority clearly supports the defendant's contention. Oregon River & Nav. Co. v. Thisler, 90 Kan. 5, 133 P. 539; Schaff v. J. C. Famechon Co., 145 Minn. 108, 176 N.W. 197; Atlanta, K. & N. R. Co. v. Horne, 106 Tenn. 73, 59 S.W. 134; Virginia-Carolina Peanut Co. v. Atlantic Coast Line R. Co., 166 N.C. 62, 69, 82 S.E. 1; Pecos River R. Co. v. Reynolds Cattle Co. (Tex. Civ. App.) 135 S.W. 162; International & G. N. Ry. Co. v. Carter (Tex. Civ. App.) 180 S.W. 663. We are not required, however, to reach a final conclusion upon this issue, for there are other considerations determinative of the case.

The plaintiff contends that, even if a change in rates could only be effectively established after such a publication of them, it was entitled to rely upon a presumption that it had complied with these requirements of the law. The federal courts recognize such a presumption. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 327, 36 S.Ct. 555, 60 L.Ed. 1022, L.R.A. 1917A, 265. We may not approach the question of our duty to apply that presumption as we would if we were dealing with the general rule applicable where a presumption in effect in another jurisdiction is invoked in an action in our courts. The need of uniformity in the determination of rights growing out...

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  • Akron, Canton & Youngstown R. Co. v. United States
    • United States
    • U.S. District Court — District of Maryland
    • January 14, 1974
    ...Civ.App.1915); Virginia-Carolina Peanut Co. v. Atlantic Coast R. R., 166 N.C. 62, 82 S.E. 1 (1914), and New York, N. H. & H. R. Co. v. Salter, 104 Conn. 728, 134 A. 220 (1926). In the Miller case, however, in discussing the meaning of the word "publishing" as it was used in what is now 49 U......

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