KANSAS CITY SOUTHERN RY. CO. v. WOLF et al.

261 U.S. 133 (43 S.Ct. 259, 67 L.Ed. 571)

KANSAS CITY SOUTHERN RY. CO. v. WOLF et al.

No. 194.

Argued: Jan. 9, 1923.

Decided: Feb. 19, 1923.

Messrs. F. H. Moore, of Kansas City, Mo., S. W. Moore, of New York City, and A. F. Smith, Cyrus Crane, and G. H. Muckley, all of Kansas City, Mo., for plaintiff in error.

Mr. Charles M. Blackmar, of Kansas City, Mo., for defendants in error.

Argument of Counsel from pages 133-137 intentionally omitted

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Mr. Justice McREYNOLDS delivered the opinion of the Court.

The original action was begun in the United States District Court, Western District of Missouri, May 12, 1915, to recover charges in excess of the published tariff rates collected by the plaintiff in error upon sundry interstate shipments of strawberries. All the shipments and payments were made prior to June 1, 1912. The company demurred:

'Because each of said counts shows upon its face that the pretended claim which is made the basis of such count accrued more than two years prior to the institution of this action.'

The trial court overruled the demurr r, and this was approved by the Circuit Court of Appeals (272 Fed. 681), which said:

'The controlling question in the case is whether the claims for repayment of the overcharges might be the subject of an original in court, or, on the other hand, should first have been submitted to the Interstate Commerce Commission. * * * The former procedure was adopted in this case. If the latter should have been followed, the claims were barred by the limitation provided in section 16. We think it quite plain that there was nothing about the tariffs, rules, or claims for overcharge calling for any administrative action of the Commission as a prerequisite to an action in court. There was no attack upon the tariffs or the rules.'

From 1906 to 1920 the Interstate Commerce Act ( 24 Stat. 379, 382; 34 Stat. 584, 590 Comp. St. §§ 8573, 8584), provided:

Sec. 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the Commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any District or Circuit Court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.

Sec. 16. * * * All complaints for the recovery of damages shall be filed with the Commission 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. 1

In Phillips v. Grand Trunk Western Railway Co., 236 U. S. 662, 667, 35 Sup. Ct. 444, 446 (59 L. Ed. 774), an action begun in the United States Circuit Court, the plaintiff alleged that the Interstate Commerce Commission had declared the published tariff rate unreasonable and sought to recover overcharges paid more than four years prior thereto. Referring especially to section 16, supra, this court declared:

'Under such a statute the lapse of time not only bars the remedy, but destroys the liability (Finn v. United States, 123 U. S. 227, 232), whether complaint is filed with the Commission or suit is brought in a court of competent jurisdiction. This will more distinctly appear by considering the requirements of uniformity which, in this as in so many other instances must be borne in mind in construing the Commerce Act. * * * To have one period of limitation where the complaint is filed before the Commission and the varying periods of limitation of the different states, where a suit was brought in a court of competent jurisdiction, or to permit a railroad company to plead the statute of limitations as against some and to waive it as against others, would be to prefer some and discriminate against others, in violation of the terms of the Commerce Act, which forbids all devices by which such results may be accomplished. * * * The railroad company therefore was bound to claim the benefit of the statute here and could do so here by general demurrer; for when it appeared that the complaint had not been filed within the time required by the statute it was evidence, as matter of law, that the plaintiff had no cause of action. The carrier not being liable to the plaintiff for overcharges collected more than four years prior to the bringing of this suit, it was proper to dismiss the action.'

True it is that the claim of Phillips & Co. was based upon schedule tariff charges theretofore declared to be unreasonable by the Interstate Commerce Commission, while here the payments demanded are said to exceed the published rates when properly applied. But the doctrine of the Phillips Case and the reasoning advanced to sup port it, we think, ar applicable to the circumstances of the instant cause. The lapse of time had destroyed any liability by the carrier to the shipper or his assignee for the alleged overcharges, and the demurror should have been sustained.

Reversed.

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1

The Transportation Act, February 28, 1920, 41 Stat. 456, 492, amended the pertinent portion of section 16 so that it now reads——

'Sec. 16. * * * (3) All actions at law by carriers subject to this act for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after. All complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues, and not after, unless the carrier, after the expiration of such two years or within ninety days before such expiration, begins an action for recovery of charges in respect of the same service, in which case such period of two years shall be extended to and including ninety days from the time such action by the carrier is begun. In either case the cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after. A petition for the enforcement of an order for the payment of money shall be filed in the Distict Court or state court within one year from the date of the order, and not after.'

Section 9 was not changed by the Transportation Act of 1920.