Payne v. Payne

TER CURIAM.

It is claimed on behalf of the receiver that the court erred in overruling his demurrer to the amended petition, for the reason that the District Court had no jurisdiction of the cause of aetion without previous resort to the Interstate Commerce Commission. The amended petition on its face, purports to state a cause of aetion to recover certain fixed storage charges claimed to be due under a uniform interstate tariff promulgated and filed by the plaintiff with the Interstate Commerce Commission, involving no question of fact, either in aid of construction or in other respect, and as so stated, involves no question of administrative discretion. The demurrer was properly overruled. Great Northern Ry. Co. et al. v. Merchants’ Elevator Co., 259 U. S. 285, 295, 296, 42 S. Ct. 477, 66 L. Ed. 943, and cases there cited.

The answer, the reply, and the evidence, particularly the tariff schedule, Exhibit 55, present a wholly different ease from the one stated in the amended petition. The tariff schedule upon which plaintiff bases his cause of action does not in terms fix a storage charge for coarse freight of this character. On the contrary, the storage charges fixed in this tariff seem clearly to contemplate and cover only freight of larger value in proportion to bulk, liable to be damaged by the elements and required to be stored, at carrier’s risk, either in the earner’s warehouse or, at the option of the carrier, may be sent to a public warehouse. Eor the storage of this character of freight, including additional service, care, protection, and risk, the carrier is entitled to larger storage charges than would be fair or reasonable for coarse freight to be shipped in carload lots, not intended to pass through carrier’s freight-house, and not to be handled by the carrier’s agents and practically impossible of being stored in a warehouse, but intended and designed to be stored on the vacant grounds of the carrier at the shipper’s risk. That this is the proper construction of this tariff schedule would seem to be recognized by note to rule I, which provides that freight, not liable to damage from the elements and not to be handled through freighthonses, may be stored free of storage charges, on vacant land of the railroad pending shipments and at owner’s risk, provided owner has previously been assigned space as far as available and without distinction.

As the only tariff schedule introduced in evidence fixes no tariff rate for the storage of lumber and other freight of like character, to be shipped in carload lots and not to be stored in warehouses or moved through the earner’s freighthouse at carrier’s risk, the judgment must be reversed. Inasmuch as this suit was based entirely upon a tariff, and was for the recovery of tariff charges, we do not determine whether or not, in an action for use and occupation of the ground after the revocation of the license, a recovery could be had, or what, if any, right the shipper might have to secure reparation at tho hands of the Interstate Commerce Commission under a claim of discrimination based upon the revocation of the license.

Reversed and remanded.