271 F. 525 | S.D. Cal. | 1921
Plaintiff, under appropriate authority, sues to recover $111.44 alleged to be due as an unpaid balance on lawful transportation charges on an automobile shipped by defendant from Ida Grove, Iowa, to Portland, Or. The total charges, “computed in -accordance with tariffs, rates and classifications approved by and on file with the Interstate Commerce Commission of the United States and duly published and posted as provided by law,” together with required War Tax, amounted to $247.40.
Plaintiff moves to strike out all the above-mentioned allegations, and also demurs to the answer on the ground that no defense or counterclaim is stated.
‘‘Ignorance or misquotation of rates is not an excuse for paying or charging either less, or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discriminations.”
The same authority in K. C. S. Ry. v. Carl, 227 U. S. 639, 653, 33 Sup. Ct. 391, 395 (57 L. Ed. 683), held:
“Neither the intentional nor accidental misstatement of the applicable published rate will bind the carrier or shipper. The lawful rate is that which the carrier must exact and that which the shipper must pay. The shipper’s knowledge of the lawful rate is conclusively presumed.”
Upon careful consideration of the subject-matter, however, I am more attracted by the reasoning indulged in by the courts in Wells-Fargo Co. v. Cuneo (D. C.) 241 Fed. 727, and C. & N. W. v. Tecktonius (D. C.) 262 Fed. 715, to the general intent that, if there be a disposition to work a discrimination and secure a rebate through the consummation of a fraudulent compromise of a suit for damages to goods in transit, the same may be effected with equal ease in a separate suit as in the suit for the recovery of unpaid carriage charges. In other words, if the parties are intending to arrange for a rebate from die established tariff through the medium of the compromise and settlement of a fraudulent claim for damages, they can do this as well in one suit as in another, and as a matter of fact the possibilities of fraud would be greater if the parties were remitted to an independent forum for the consideration of the mere damage claim. There, in the absence of some circumstance involving it, the court would have no concern with the bona fides of the claim. When pressed as a counterclaim to a suit for unpaid carriage charges, however, in order that the public policy involved might be best maintained, the trial court would be unusually astute to see that every item of damage claimed was bottomed upon persuasive proof.
In my judgment the mere possibility of compromise and settlement works toward a negation of the principle of public policy involved. It admits of a payment-by the carrier, as for damages, upon, a fraudulent claim, of a part of the moneys theretofore received in satisfaction of the carriage charges lawfully due. Whenever and under whatever guise that fraud is perpetrated, the principle striven for in the cases relied on by plaintiff is completely set at naught.
The courts must presume in advance that the parties will act in good faith in whatever form the litigation may come before the court for consideration, and it must also be presumed that no counterclaim
Finally, commendable economy and efficiency in judicial procedure would seem to justify the disposition of the entire related controversy in the one action. If the theory of the plaintiff were correct, upon an agreement to pay the entire freight charges in advance and a payment through mistake or otherwise of only a portion thereof, plaintiff would be entitled to recover the full amount of the asserted unpaid freight charges, even though there should have been a complete failure to deliver the merchandise carried. If defendant by way of defense in the same suit could not show a partial damage to the article carried, he could not show its entire loss. The difference is one of degree only.
The motion to strike, being a single motion directed to all of the averments in the answer, is denied, and the demurrer is overruled.