No. 61 | N.D. Iowa | Feb 3, 1914
(after stating the facts as above). The plaintiffs in their petition allege, in substance: That in May, 1909, they delivered to the defendants therein named a quantity of wool of the value of $1,500 at Mclntire, Iowa, a station on the line of the Chicago Great Western Railroad Company, without any written agreement or bill of lading issued therefor, to be shipped by the defendants from said station to Philadelphia, Pa., there to be delivered to the plaintiffs; that defendants carried .said wool to its destination, but failed to deliver the same to the plaintiffs or notify them of its arrival at Philadelphia, and have failed to account to them therefor, and have either appropriated the said wool to their own use, or have delivered the same to some person not authorized to receive the same. Judgment is asked against the defendants for the value of the wool, viz., $1,500, with interest and costs. The defendants Chicago Great Western Railroad Company and the Wabash Railroad Company in due time filed separate petitions to remove the action to this court upon the ground, as alleged therein, that the plaintiffs were, when the suit was commenced, citizens of the state of Iowa, and the defendants corporations of Illinois and Missouri, respectively; and “that the cause of action alleged by plaintiffs in their petition is one arising under a law regulating commerce, to wit, section 20 of the Interstate Commerce Act as amended by the Act of June 29, 1906.”
The defendant Philadelphia & Reading Company filed a motion in the state court to dismiss the action as to it upon the ground that it had not been served with notice of the action within the state of Iowa, and that it was not doing business in said state, but subsequently withdrew said motion; and it was not ruled upon in the state court. After such withdrawal the state court ordered the removal of the cause to this court upon the petitions of the Chicago Great Western Railroad Company and the Wabash Railroad Company. The Philadelphia & Reading Company did not join in either of said petitions, nor file a separate petitition to remove the action and does not appear in this court.
The plaintiffs move to remand upon the grounds, among others:
“That the cause of action alleged in the petition is not one arising under tbe ‘act to regulate commerce,’ or any other law of the United States.”
But if it did appear from the plaintiff’s petition that the wool was delivered by them to the Chicago Great Western Railroad Company at McIntire, Iowa, to be carried in interstate commerce to its destination in Pennsylvania, a point beyond its own line through connecting carriers as its agents, and was lost or damaged in transit either upon its own line or that of the connecting carriers, such loss or injury could not be attributed to any violation of the act to regulate commerce; and an action to recover for such loss would not therefore be one arising under that act as amended by that part of section 7 of the act of June 29, 1906 (34 Stat. 593) commonly called the “Carmack amendment,” as claimed by the removing defendants in their respective petitions for removal; but would only be one to recover from the primary carrier upon its common-law carrier liability for an injury to or loss of the property occurring upon its own line or that of a connecting carrier as its agent in carrying the property to its destination. Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. 481" court="SCOTUS" date_filed="1912-02-19" href="https://app.midpage.ai/document/galveston-harrisburg--san-antonio-railway-co-v-wallace-97564?utm_source=webapp" opinion_id="97564">223 U. S. 481, 490, 32 Sup. Ct. 205, 56 L. Ed. 516" court="SCOTUS" date_filed="1912-02-19" href="https://app.midpage.ai/document/galveston-harrisburg--san-antonio-railway-co-v-wallace-97564?utm_source=webapp" opinion_id="97564">56 L. Ed. 516.
The so-called Carmack amendment, as construed by the Supreme Court, declares only that a common carrier engaged in interstate commerce, who receives property for transportation from a point on its own line to a point in another state beyond its line, shall be deemed to have contracted for through carriage to the point of' destination, using the lines of connecting carriers as its agents; and forbids such carrier from making any contract, receipt, rule, or regulation which shall exempt it from the liability thereby imposed. In Atlantic Coast Line Ry. Co. v. Riverside Mills, 219 U.S. 186" court="SCOTUS" date_filed="1911-01-03" href="https://app.midpage.ai/document/atlantic-coast-line-railroad-v-riverside-mills-97345?utm_source=webapp" opinion_id="97345">219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167" court="SCOTUS" date_filed="1911-01-03" href="https://app.midpage.ai/document/atlantic-coast-line-railroad-v-riverside-mills-97345?utm_source=webapp" opinion_id="97345">55 L. Ed. 167, 31 L. R. A. (N. S.) 7, the Supreme Court said:
“The general doctrine accepted by this court, in the absence of legislation, is that a carrier, unless there be a special contract, is only bound to carry over its own line and then deliver to a connecting carrier. That such an*365 initial carrier might contract t© carry over the whole route was never doubted. It is equally indisputable that, if it does so contract, its common-law carrier liability will extend over the entire route.”
It then holds that an action.to recover damages for an injury to or loss of property so received by an interstate carrier is a loss or injury in no way attributable to any violation of the provisions of the act to regulate commerce; but is one only to recover upon its common-law liability as such carrier.
In Galveston, H. & S. A. Ry. Co. v. Wallace, above, the court in speaking of the Carmack amendment said:
“Wherever the carrier voluntarily accepts goods for shipment (under that amendment) to a point on another line in another state, it is conclusively treated as having made a through contract. It thereby elected to treat the connecting carriers as its agents, for all purposes of transportation and delivery,” and must “be treated as though the point of destination was on its own line, and is to be governed by the same rules of pleading, practice,.and presumption as would have applied if the shipment had been between stations in different states, but both on the company’s railroad. * *. * But damages caused by a failure to deliver goods is in no way traceable to a violation of the statute, and is not therefore within the provisions of sections 8 and 9 of the act to regulate commerce. * * * ”
The cases of Schlemmer v. Buffalo, Rochester, etc., Ry., 205 U.S. 1" court="SCOTUS" date_filed="1907-03-04" href="https://app.midpage.ai/document/schlemmer-v-buffalo-rochester--pittsburg-railway-co-96616?utm_source=webapp" opinion_id="96616">205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681" court="SCOTUS" date_filed="1907-03-04" href="https://app.midpage.ai/document/schlemmer-v-buffalo-rochester--pittsburg-railway-co-96616?utm_source=webapp" opinion_id="96616">51 L. Ed. 681, and Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U.S. 501" court="SCOTUS" date_filed="1910-01-17" href="https://app.midpage.ai/document/macon-grocery-co-v-atlantic-coast-line-railroad-97133?utm_source=webapp" opinion_id="97133">215 U. S. 501, 30 Sup. Ct. 184, 54 L. Ed. 300" court="SCOTUS" date_filed="1910-01-17" href="https://app.midpage.ai/document/macon-grocery-co-v-atlantic-coast-line-railroad-97133?utm_source=webapp" opinion_id="97133">54 L. Ed. 300, do not support the contention of the defendants. The Schlemmer Case was to recover damages resulting from a failure to equip a car, upon which the plaintiff’s intestate was killed, with a coupler as required by the safety appliance act of Congress. It was therefore a cause of action directly arising from a violation of that act.
The Macon Grocery Co. Case was a suit in equity to restrain the interstate carriers named as defendants from putting into effect upon their respective roads advances in freight rates, which it was alleged would be in direct violation of the act to regulate commerce. In each case, therefore, the cause of action alleged was directly traceable to an alleged violation of a law of the United States, viz., (1) the safety appliance law of Congress (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), and (2) the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]).
In the Macon Grocery Co. Case, however, it was held that the Circuit Court was without jurisdiction of the suit because it was not brought in a district of which some of the defendants were inhabitants (it not being founded alone upon the diverse citizenship of the parties); but the decree of the Court of Appeals was affirmed, because that court had directed the dismissal of the bill without prejudice.
It seems entirely clear, therefore, that a failure of the initial carrier in interstate commerce to pay for the alleged loss of goods occurring upon its own line or the line of a connecting carrier while in transit violates no provisions of the act to regulate commerce, any more than its failure to pay any other obligation it might owe not arising from some violation of such act; and an action to recover for such loss is not one arising under that act.
Inasmuch therefore as it does not appear from plaintiff’s petition that recovery is sought for any violation of the act to regulate commerce, and the amount involved is not sufficient to confer jurisdiction upon this court of a cause of action arising under any other applicable law of Congress, the motion to remand must be sustained, and the action' remanded to the state court from which it was removed. It is accordingly so ordered.