Wells Fargo & Co. v. Cuneo

• Court: U.S. District Court — Southern District of New York
• Citation: Wells Fargo & Co. v. Cuneo, 241 F. 727 (S.D. N.Y. 1917)
• Decision Date: 09 April 1917
• Parties: WELLS FARGO & CO. v. CUNEO.

241 F. 727

WELLS FARGO & CO. v. CUNEO.

United States District Court, S.D. New York.

April 9, 1917

Charles W. Stockton and Branch P. Kerfoot, both of New York City, for plaintiff.

Arthur W. Clement and Wilson E. Tipple, both of New York City, for defendant.

MAYER District Judge.

The action is by plaintiff express company to recover express charges on a shipment made by defendant through plaintiff from New York to San Francisco. The complaint alleges that plaintiff is a common carrier engaged in interstate commerce has duly filed its schedules of rates with the Interstate Commerce Commission, the delivery of the shipment in question by defendant to plaintiff at New York, the transportation of the shipment to San Francisco, and its delivery to the consignee. It also alleges demand upon the consignee for payment of the express charges and the consignee's refusal to pay same, and demand upon the defendant for payment of said charges and the refusal of defendant to pay same.

The answer interposes several denials, and then sets up as a separate defense the allegation that the plaintiff agreed to collect its charges from the consignee and from no other person. The answer also sets up as a further defense, and by way of counterclaim, allegations that the shipment was negligently damaged by the plaintiff while in the plaintiff's possession, and demands judgment for such damage.

Plaintiff has demurred to the separate defense, and to the matter pleaded as a further defense and by way of counterclaim.

There is diversity of citizenship, but, as the amount involved is only $780, defendant attacks the jurisdiction of the court and asserts that the action does not fall under section 24 of the Judicial Code, which provides in part as follows:

'8. All suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court, Act March 3, 1911, c. 231, 36 Stat. 1092 (Comp. St 1916, Sec. 991 (8)).' 1. Jurisdiction. Judge Augustus N. Hand heretofore decided this question adversely to defendant. See opinion dated February 10, 1917, 241 F. 726. Defendant now calls attention to the opinion, dated February 16, 1914, of Judge Ward, sitting in District Court, in Orr v. Baltimore & Ohio Railroad Co., 242 F. 608, and to Yazoo Ry. Co. v. Zemurray, 238 F. 789, . . . C.C.A. . . . (C.C.A. 5th Circuit).

There is not a uniformity of opinion on this subject, and Judge Hand, after weighing the authorities, concluded that the better reasoning sustained jurisdiction. He has informed me that he considered Judge Ward's opinion, but as Judge Ward did not positively pass on the question, but merely held that 'the decisions make it very doubtful whether the suit does arise out of a law of the United States, within the meaning of section 24, subdivision 8, of the Judicial Code. ' Judge Hand, by independent investigation, arrived at his conclusion. In Yazoo Ry. Co. v. Zemurray, supra, the court, as in the case before Judge Ward, could place its decision on other grounds, and so, referring to the question of jurisdiction, it stated: ' * * * We doubt the jurisdiction of the court. * * * ' As the question is doubtful, and as I am not clearly convinced that this court lacks jurisdiction, comity and uniformity of decision in the same court require that I should follow Judge Hand, and consequently this motion is denied.

2. Demurrer to Separate Defense. Briefly summarized, this defense sets forth that the shipment was 'delivered by the defendant and accepted by the plaintiff under a lawful agreement that the plaintiff would collect its lawful charges for transporting the same from the consignees thereof and from no other person. ' This defense cannot avail defendant under Atlas S.S. Co. v. Columbian Land Co., 102 F. 358, 42 C.C.A. 398; Portland Flouring Mills Co. v. British & Foreign Marine Ins. Co., 130 F. 860, 65 C.C.A. 344; Jobbitt v. Goundry, 29 Barb. (N.Y.) 509; Central Railroad of New Jersey v. MacCartney, 68 N.J.Law, 165, 52 A. 575; and other cases unnecessary to cite.

'The rule is that the consignor is the party primarily liable for the payment of the freight, and this rule is enforced, independent of the question whether the consignor is the owner, and regardless of the question whether the payment of freight is secured by a lien on the cargo, because the consignor is the party for whom the service is performed. ' Portland Flouring Mills Co. v. British & Foreign Marine Ins. Co., supra.

It is urged, however, that the defense is good because, inter alia the complaint alleges merely that the consignee has refused to pay, and does not allege that the charges cannot be collected from the consignee. This refusal, if anything, makes the plaintiff's case stronger. It was the duty of plaintiff, as a carrier in interstate commerce, to collect the charges, and, if the consignee will not pay, plaintiff is...