187 F. 874 | U.S. Circuit Court for the District of Southern Ohio | 1910
(after stating the facts as above). The claim of the plaintiff for an overcharge in freight was heretofore submitted to the Interstate Commerce Commission, and all the
"All complaints for the recovery of damages shall be filed with the eonir mission within two years from the time the cause of action accrues, and not after, and a petition for the enforcement of an order for the payment of money shall be filed in the Circuit Court within one year from the date of the order, and not after: Provided, that claims accrued prior to the passage of this act may be presented within one year.”
Under the contention of the defendant, the first part of the section contemplates future causes of action accruing after the passage of the act, and the proviso has in mind all cases which accrued prior to the passage of the act. Hence the plaintiff’s case is barred. Plaintiff’s case comes within the literal language of the first part of the section, but is barred if the language of the proviso is applied literally.
Under the proviso the length of time elapsing after the accrual of the claim is immaterial. The claim might be more than two years old at the time of the passage of the act, and yet be saved. The sweeping requirement of two years in the first part of the section is limited so as not to include claims two years or more old at the time of the passage of the act. The purpose of the proviso was to save claims which had existed more than two years prior to the passage of the act, but which were not covered by the first clause. When Congress established these new rights and remedies, some limitation, of course, had to be fixed within which causes might be brought, and it was highly proper that at the start all causes should be provided for. This is done if plaintiff’s contention as sustained by the commission prevails,, but is not effected if defendant is right. Under defendant’s construction, a cláim accruing one dayr before the passage of the act must be presented within one year after that event, but a claim accruing one day after the passage of the act would be given two years within which it might be filed. Such a result would not seem to have been
“Every carrier shall have llie right, in case of necessity, to forward said property by any carrier between the point of shipment and the point to which the rate is given. All additional risks and increased expenses incurred by reason of change of route in cases of necessity shall be borne by the owner of the goods and be a lien thereon.”
It was the opinion of the commission that the right of the shipper was to have his property transported upon the lines and at the rate specified in the rate schedules, that it was not a matter to he dealt with under the ordinary rules affecting contract obligations, but that the carrier was required under the law to carry complainant’s property at the published rates, and was not authorized to make any kind of contract with the shipper by which the rates^could be increased or decreased. This court concurs in that view. .
The necessity which defendant claims as an excuse for diversion of the shipment to another route and the consequent increase of cost in transportation is twofold in that the P. C. C. & St. L. R. R. Co., by reason of a congestion of traffic had laid an embargo upon receiving at Cincinnati any more freight and would not, and could not, receive from defendant, plaintiff's two cars of merchandise; and that there was an extraordinary volume of traffic at that time, and the two cars if held by defendant would have brought about a congestion
Orders on the demurrers may be taken in accordance with these conclusions.
For Oilier oases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes