Gulf, M. & N. R. v. Merchants' Specialty Co.

Fifth Circuit

Gulf, M. & N. R. v. Merchants' Specialty Co.

50 F.2d 21, 1931 U.S. App. LEXIS 4396

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 25, 1931

DocketNo. 6100

StatusPublished

Cited by3 cases

This text of 50 F.2d 21 (Gulf, M. & N. R. v. Merchants' Specialty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gulf, M. & N. R. v. Merchants' Specialty Co., 50 F.2d 21, 1931 U.S. App. LEXIS 4396 (5th Cir. 1931).

Pincite

Opinion

BRYAN, Circuit Judge.

This is an action on an order of the Interstate Commerce Commission awarding reparation on account of unreasonably high freight rates collected by a carrier for the transportation of salt from the mines in Louisiana to point of destination in Mississippi. It was brought by the consignee of the salt, who recovered judgment.

The carrier appeals and relies on two grounds for reversal. The first is that the order of reparation was not final. That order was issued by the commission March 11, 1929, and allowed appellant until April 26 following to make reparation. This action was brought in the district court in September 1929, appellant having failed up to that time to comply with the commission’s order by making reparation, or to apply for a rehearing. In March, 1930, appellant filed before the commission a petition for rehearing, which was granted in May of that year. The Interstate Commerce Act provides that the commission may establish general rules governing applications for rehearings, but that no such application shall excuse a carrier from obeying any order of the commission or operate to stay or postpone the enforcement thereof without special order; and that suit may be brought in the appropriate district court and be prosecuted in all respects like other civil suits for damages, if the carrier does not comply with an order of the commission for the payment of money within the time limit prescribed in such order. 49 USCA §§ 16a and 16(2). The order of reparation had become final under a rule of the commission before this suit was brought in so far as it affected appellee’s private rights concerning past transactions. The commission’s order granting the rehearing after suit was brought could not under the statute have the effect of depriving the District Court of the right to proceed to final judgment in the case before it. Baer Bros. v. Denver, etc., R. R. Co., 233 U. S. 479, 34 S. Ct. 641, 58 L. Ed. 1055. Nor does it appear, that the commission intended by granting a rehearing to do more than to consider rates for the future.

The second ground of this appeal is that the right of action, if any existed, accrued to the shipper rather than to the consignee. The shipper’s invoice named a unit price at destination, but there was deducted the amount of the freight charges which was stated to be for the consignee’s account. The consignee paid the freight and had no claim agáinst the shipper for reimbursement. It [22]*22was therefore entitled to sue. Davis v. Mobile & Ohio R. R. Co. (C. C. A.) 194 F. 374.

The judgment is affirmed.

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BRYAN, Circuit Judge.

This is an action on an order of the Interstate Commerce Commission awarding reparation on account of unreasonably high freight rates collected by a carrier for the transportation of salt from the mines in Louisiana to point of destination in Mississippi. It was brought by the consignee of the salt, who recovered judgment.

The carrier appeals and relies on two grounds for reversal. The first is that the order of reparation was not final. That order was issued by the commission March 11, 1929, and allowed appellant until April 26 following to make reparation. This action was brought in the district court in September 1929, appellant having failed up to that time to comply with the commission’s order by making reparation, or to apply for a rehearing. In March, 1930, appellant filed before the commission a petition for rehearing, which was granted in May of that year. The Interstate Commerce Act provides that the commission may establish general rules governing applications for rehearings, but that no such application shall excuse a carrier from obeying any order of the commission or operate to stay or postpone the enforcement thereof without special order; and that suit may be brought in the appropriate district court and be prosecuted in all respects like other civil suits for damages, if the carrier does not comply with an order of the commission for the payment of money within the time limit prescribed in such order. 49 USCA §§ 16a and 16(2). The order of reparation had become final under a rule of the commission before this suit was brought in so far as it affected appellee’s private rights concerning past transactions. The commission’s order granting the rehearing after suit was brought could not under the statute have the effect of depriving the District Court of the right to proceed to final judgment in the case before it. Baer Bros. v. Denver, etc., R. R. Co., 233 U. S. 479, 34 S. Ct. 641, 58 L. Ed. 1055. Nor does it appear, that the commission intended by granting a rehearing to do more than to consider rates for the future.

The second ground of this appeal is that the right of action, if any existed, accrued to the shipper rather than to the consignee. The shipper’s invoice named a unit price at destination, but there was deducted the amount of the freight charges which was stated to be for the consignee’s account. The consignee paid the freight and had no claim agáinst the shipper for reimbursement. It [22]*22was therefore entitled to sue. Davis v. Mobile & Ohio R. R. Co. (C. C. A.) 194 F. 374.

The judgment is affirmed.

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Bluebook (online)

50 F.2d 21, 1931 U.S. App. LEXIS 4396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-m-n-r-v-merchants-specialty-co-ca5-1931.

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