Ratican v. Terminal R. Ass'n of St. Louis

• Decision Date: 11 March 1902
• Docket Number: 3,969,3,970.
• Citation: 114 F. 666
• Parties: RATICAN v. TERMINAL R. ASS'N OF ST. LOUIS. KINNAVEY v. SAME.
• Court: U.S. District Court — Eastern District of Missouri

114 F. 666

RATICAN v. TERMINAL R. ASS'N OF ST. LOUIS.

KINNAVEY v. SAME.

Nos. 3,969, 3,970.

United States Circuit Court, E.D. Missouri, Eastern Division.

March 11, 1902

F. A Wind and C. G. B. Drummond, for plaintiff.

McKeighan Barclay & Watts and H. S. Priest, for defendant.

ADAMS District Judge.

The petition in this case is based upon section 2 of the interstate commerce act (24 Stat. 379). That section is as follows:

'If any common carrier subject to the provisions of this act shall, directly or indirectly by any special rate, rebate drawback, or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered or to be rendered in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.'

Plaintiff alleges in the separate counts of his complaint that at divers times between the 1st day of May, 1891, and the 1st day of October, 1892, he was engaged in the business of coal merchant in the city of St. Louis, and that during the same period the Consolidated Coal Company was also engaged in the same business at the same place; that between the dates aforesaid the defendant, as common carrier, at his request, transported from East St. Louis, Ill., to plaintiff's switch in the Union Depot yards in St. Louis a large quantity of coal, the same being specifically set forth in the petition; that the defendant charged the plaintiff, and plaintiff paid to the defendant, for such service, at the rate of 30 cents per ton; that during the same period defendant performed like service in the transportation of coal under substantially similar circumstances and conditions for the Consolidated Coal Company, and charged the last-named company for the same service 25 cents per ton only; that thereby the defendant was guilty of unjust discrimination against plaintiff, and violated section 2 of the interstate commerce act, hereinbefore set forth. Plaintiff's suit was instituted June 26, 1896,-- more than three years after the alleged wrongful act of the defendant.

The foregoing facts appearing in the complaint, the defendant demurs thereto on the ground, among others, that each and all of the alleged causes of action set forth in the petition accrued more than three years prior to the filing of the original petition herein, and are barred by the statute of limitations of the state of Missouri in such case made and provided. Section 2425, Rev. St. Mo. 1899, provides as follows: 'All actions upon any statute for any penalty or forfeiture, given in whole or in part to the party aggrieved, shall be commenced within three years after the commission of the offense, and not after.'

This statutory provision was in force, in section 4005, Rev. St. 1889, at the time plaintiff's cause of action accrued. It is contended by the defendant that the foregoing statute of limitation is an effectual bar to plaintiff's right of recovery in this case. Whether such contention is sound is the proposition now to be considered.

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. Bauserman v. Blunt, 147 U.S. 647, 13 Sup.Ct. 466, 37 L.Ed. 316; Metcalf v. City of Watertown, 153 U.S. 671, 14 Sup.Ct. 947, 38 L.Ed. 861; Balkam v. Iron Co., 154 U.S. 177, 14 Sup.Ct. 1010, 38 L.Ed. 953; Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280.

Under the Code of Civil Procedure of Missouri, the ancient distinction between legal and equitable actions is abolished, and but one form of action for the enforcement or protection of private rights and the redress or prevention of private wrongs is recognized. The petition must contain a plain and concise statement of the facts constituting a cause of action, and a demurrer is the recognized pleading to test the sufficiency of the facts stated in the petition to constitute such cause of action. The demurrer must distinctly point out the grounds of objection to the petition. Sections 539, 598, 599, Rev. St. Mo. 1899. The foregoing provisions of the Code have been held by the supreme court of Missouri to permit a defendant to invoke the protection of the statute of limitations of the state by demurrer. Boyce v. Christy, 47 Mo. 70; Henoch v. Chaney, 61 Mo. 129; Heffernan v. Howell, 90 Mo. 344, 2 S.W. 470. Such being the construction placed upon the provisions of the Code by the supreme court of the state, the federal courts are bound thereby.

The supreme court of the United States, in Bank v. Lowery, 93 U.S. 72, 23 L.Ed. 806, had occasion to consider the question of practice now before the court. It arose in a case from Wisconsin, where the provisions of the Code of Practice were quite similar to those of Missouri already adverted to, and the conclusion was there reached that the courts of the United States will permit a defendant to invoke the protection of the statute of limitations by a demurrer in all cases where the same could be done under the statutes of the state in which the action arose. The court there said, adverting to the contention that there might be exceptions which would take the plaintiff's cause of action out of the statutes, as follows:

'If the plaintiff relies on a subsequent promise or on a payment to revive the cause of action, he must set it up on the original complaint, or ask leave to amend. Without this precaution the complaint is defective, in not stating, as required by the statutes, facts sufficient to constitute a cause of action. But although defective, advantage cannot be taken of the defect on motion, or in any other way than by answer, which answer, however, we have seen, may be a demurrer.' Following the intimation of the foregoing opinion, counsel for plaintiff in this case undertook to plead facts in the petition to avoid the running of the statute of limitations. The averment is as follows:

'Plaintiff further states that it was publicity announced by defendant during said period that all coal dealers were paying the rate charged and paid by plaintiff for said services, and plaintiff did not learn that said representations were false, and that he was being unjustly discriminated against as aforesaid, until, to wit, the 1st day of March, 1896, when the fact was elicited by a committee appointed by the legislature of the state of Illinois, and reported in the daily press.'

Plaintiff's counsel contends that the foregoing averment brings his case within the provision of section 4290, Rev. St. Mo. 1899, which reads as follows:

'If any person, by absconding or concealing itself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.'

This last section is found in chapter 48 of the Revised Statutes, relating to the limitations of actions generally. Defendant's counsel contends that the last-quoted section has no application to the statute of limitations which he invokes, found in a different chapter of the statutes, under article II, concerning limitations of criminal actions and prosecutions, which contains section 2425, already quoted as relied upon by defendant's counsel, namely:

'All actions upon any statute, for any penalty or forfeiture given in whole or in part to the party aggrieved, shall be commenced within three years after the commission of the offense, and not after.'

There is much reason in the contention of the defendant's counsel on this proposition. Section 4290, supra, by its terms, relates to the commencement of such actions as are 'herein' limited, and refers, obviously, to those personal actions which are the subject-matter of article 2 of chapter 48, under consideration. Moreover, section 4292 of the same statutes enacts as follows:

'The provisions of this chapter shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.'

It seems obvious from plain reading of the foregoing section that section 4290, exonerating the plaintiff from the effects of the general statute of limitations in case the defendant has been guilty of some improper act which has prevented commencement of an action, has no...