ration irrespective of fact that shipper
could have enjoyed lower rate if ship-
ments had moved through a different
gateway. Williar v. Can. Nor. Que.
Ry. Co., 17 I. C. C. 304, 305.

(dd) Where a carrier has made an
overcharge through the misapplication
of its published tariffs, it should settle
the same with the shipper at once with-
out proceedings before the Commission,
but where the published rate has been
collected but is alleged to be unrea-
sonable, such cases should be referred
to the Commission before being ad-
justed. Tyson & Jones Buggy Co. v.
A. & A. Ry. Co., 17 I. C. C. 330, 332.

(ee) As complainant, who is a com-
mission merchant, was neither consign-
or nor consignee, and apparently did
not pay the charges, order will be
entered that defendant refund to such
party as may be lawfully entitled to
receive the same. Jones v. K. C. S.
Ry. Co., 17 I. C. C. 468, 470.

(ff) Complainant entitled to repara-
tion by difference between amount col-
lected and what would have been as-
sessed under a reasonable rate. Mich-
ael Cohen & Co. v. So. Ry. Co., 16 I.
C. C. 177, 178.

(gg) If the Commission felt that
the rate charged was unjust and un-
reasonable and that reparation should
be granted it would so declare, regard-
less of whether the number of shippers
who had paid such rate was large or
small. All should be treated alike.
Menefee Lumber Co. v. T. & P. Ry.
Co., 15 I. C. C. 49, 51.



726



REPARATION, 6 (hh) (oopp)



(hh) The fact that complainant is
neither consignee nor consignor does
not exclude it from the right to repa-
ration, where the evidence is conclusive
that complainant bore the burden of
the excess charge and actually sustained
the loss claimed. Lindsay Bros. v. G.
R. & I. Ry. Co., 15 I. C. C. 182, 183.

(ii) When the Commission has stated
a general rule in regard to reparation,
the fact that a particular shipper has
refused to comply promptly with his
lawful duty should not place him in a
more advantageous position than the
shipper who has complied with the law.
Cambria Steel Co. v. B. & O. R. R.
C., 15 I. C. C. 484.

(jj) The fact that complainant's
petition demands damages on a speci-
fied shipment does not prejudice his
right to recover on all shipments, even
though the aggregate amount of such
recovery is greater than the sum
claimed. Nollenberger v. M. P. Ry. Co.,
15 I. C. C. 595, 598.

(kk) The unreasonableness of the
rates on the lines of the defendant car-
riers in the former proceedings referred
to, from points of origin to points of
destination embraced within the orders
of the Commission therein, has already
been established. Reparation should
be awarded to the parties shown to be
entitled thereto for the difference be-
tween the rates condemned by said or-
ders and the higher rates paid since
the date of their establishment. The
right to recover reparation is not con-
fined to shipments made by parties
to the former proceedings, but ex-
tends to all shipments charged for on
the basis indicated, by whomsoever
made. No orders for reparation wul
be entered on account of the alleged
exaction of excessive charges on ship-
ments from points of origin to destina-
tion not involved in the former pro-
ceedings until the question of the
reasonableness of the rates shall be
determined. The Commission has no
jurisdiction to make orders for repara-
tion on account of any alleged excess-
ive rate except when, upon complaint,
notice to the defendants, and a full
hearing, such rate has been challenged
and found to be unreasonable. Nicola,
Stone & Myers Co. v. L. & N. R. R.
Co., 14 I. C. C. 199, 205.

(11) The Commission is confined in
the making of awards for reparation to



the injury or damage sustained by those
who are the real and substantial parties
at interest in the transaction in which
such transportation charges have been
assessed. The reparation is due to the
person who has been required to pay
the excessive charge as the price of
transportation and who was the true
owner of the property transported dur-
ing the period of transportation. Nic-
ola, Stone & Myers Co. v. L. & N. R.
R. Co., 14 I. C. C. 199, 208, 209.

(mm) In the former cases of Tift
v. Southern Ry. Co., 10 I. C. C. 548, and
Central Yellow Pine Ass'n v. Illinois
Central R. R. Co., 10 I. C. C. 505, the
Commission held that the rates on
lumber shipped from points on de-
fendants' lines in Louisiana, Mississippi,
Alabama and Georgia, to points on and
beyond the Ohio River, were excessive
to the extent of 2c per 100 Ibs. HELD,
all shippers were thereafter entitled
to recover reparation for shipments of
lumber between the points embraced in
these former decisions whether or not
they were parties complainant in these
cases. Nicola, Stone & Myers Co.
v. L. & N. R. R. Co., 14 I. C. C. 199,
205.

(nn) Where shippers of lumber have
filed a complaint and secured an award
of reparation for excessive rates paid
by them to defendants, the Commission
has no jurisdiction upon the interven-
tion of the mill men and manufacturers
selling lumber to complainants to de-
termine whether they were the parties
really injured by the excessive rates,
and the Commission can award repara-
tion only to the parties paying the ex-
cessive charges. Nicola, Stone & Myers
Co. v. L. & N. R. R. Co., 14 I. C. C. 199,
208.

(oopp) In two former cases the Com-
mission ordered a reduction of 2c
per 100 Ibs. on lumber shipped over
defendants' lines from points in Louisi-
ana, Mississippi, Alabama and Georgia
to points on and north of the Ohio
River. In the present proceedings com-
plainants sought reparation of 2c per
100 Ibs. on lumber shipped from points
in the territory embraced in the former
cases to points south of the Ohio River
not involved in those former cases,
and also for shipments from Florida
and other territory not covered by the
former decisions to points on, north,
and south of, the Ohio River. Complain-



REPARATION, 6 (qq) 7 (c)



727



ants contended that on the face of
the complaint they were entitled to
reparation upon the theory that the
facts, circumstances and conditions af-
fecting the shipments in question were
substantially the same as those in-
volved in the previous ' cases. HELD,
the Commission would not enter an or-
der of reparation without the hearing
of evidence, since defendants were en-
titled to their day in court to deter-
mine the reasonableness of rates, not
theretofore specifically passed on. Nic-
ola, Stone & Myers Co. v. L. & N. R.
R. Co., 14 I. C. C. 199, 205.

(qq) The right to recover repara-
tion is not confined to shipments made
by parties to the former proceedings,
but extends to all shipments charged
for on the basis indicated, by whomso-
ever made. Nicola, Stone & Myers Co.
v. L. & N. R. R. Co., 14 I. C. C. 199, 205.

(rr) Relief against the carrier must
ordinarily be predicated upon its failure
or refusal to do what it is legally
bound to do, and not upon the fact
that the complainant shipper has volun-
teered to do it for the carrier. Gen-
eral Electric Co. v. N. Y. C. & H. R.
R. R. Co., 14 I. C. C. 237, 244.

(ss) Where complainant ships lum-
ber to another corporation as consignee
under an arrangement by which such
corporation is to pay the freight and
deduct same from the purchase price,
and it is charged an excessive rate and
deducts same in its settlement with
complainant, the shipper is entitled
to recover the excess from defendant
carrier. Hayden & Westcott Lumber
Co. v. G. & S. I. R. R. Co., 14 I. C.
C. 537, 538.

(tt) Record shows complainant did
not pay the freight, nor does it appear
that it was otherwise damaged. The
complaint will therefore be held open to
give complainant an opportunity to show
that it paid the freight, or its consignee
charged the excess to it and the amount
has been paid. Sunderland Bros. Co. v.
C. & N. W. Ry. Co., Unrep. Op. 148.

(uu) Commission erred in former re-
port. Additional reparation awarded.
American Plow Co. v. P. M. R. R. Co.,
Unrep. Op. 219.

(vv) Reparation will not be allowed
on shipments moving prior to filing
original complaint. Burgess v. Transcon-
tinental Freight Bureau, Unrep. Op. 229.



(ww) Reparation will be awarded
only in favor of those who paid the
charges, or on whose account the same
were paid, and who were the true own-
ers of the property transported during
the period of transportation. Oden &
Elliott v. S. A. L. Ry., Unrep. Op. 253.

(xx) The only party to whom an
award of damages can lawfully be made,
where payment of an unreasonable rate
is alleged, is the one who paid the rate,
or on whose account it was paid. Minne-
apolis Threshing Machine Co. v. C. M.
& St. P. Ry. Co., Unrep. Op. 452.

7. Statute of Limitations.

See Claims, I; Procedure Before Com-
mission, 4 (b), (c), 13 (k).

(a) Section 16 of the Act providing
that 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
that the 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 does not apply to a suit insti-
tuted under section 9 of the Act.
No limitation is prescribed by the Act
for such a suit and whether the time
is limited by the statute of limitations
of the state in which the case arises,
or by section 1047 of the Rev. St. U.
S., quaere. Lyne v. D. L. & W. R.
R. Co., 170 Fed. 847, 849.

(b) A complaint for reparation on a
discriminatory freight rate filed within
one year from the passage of the law
of June 29, 1906, is not subject to the
two-year limitation of the statute, but
if instituted subsequent to the year, it
is so subject. Meeker & Co. v. Le-
high Valley R. R. Co., 23 I. C. C. 480,
482.

(c) In Procter & Gamble Co. v. C.
H. & D. Ry. Co., 9 I. C. C. 440, the
Commission held the classification of
common soap in less than carloads of
20 per cent less than third class unrea-
sonable. The Commission's order was
contested through the courts, and on
May 13, 1907, the Supreme Court up-
held it, and the carriers then complied
Aug. 1, 1907. On Aug. 28, 1907. the

omplainant filed a petition inartificialiy
drawn, named the complainants and de-
fendants, and stated that the shipments
involved were less than carload lots of
common soap shipped by them over de-



728



REPARATION, 7 (d) (k)



fendants' lines to Philadelphia; the
classification under which rates were
charged and the classification under
which they should have been charged,
and promised to file shortly a detailed
description of each shipment and a
complete list of all overcharges. On
June 24, 1908, an amended petition was
filed, which was properly drawn, de-
manding reparation on all less-than-car-
load shipments of common soap by
the complainant between April 10,
1903, and Aug. 1, 1907. HELD, that
the Baltimore & Ohio Railroad, having
been the only defendant originally a
party to the Procter & Gamble case, it
is the only one bound by that decision;
that while the original petition filed
by complainant was imperfect, yet since
the defendant was advised by it that it
had wrongfully collected sums of money
from the complainant and exactly why
these charges were wrongful, and had
in its own possession a record of all
the shipments of complainant and a
record of all the overcharges on these
shipments, the original petition must
be held to have stated a good cause
of action, and in view of the circum-
stances of the case should be deemed
to have stopped the running of the
statute, and that reparation on the basis
of the fourth-class rate should be
awarded against the Baltimore & Ohio
Railroad. Fels & Co. v. P. R. R. Co.,
23 I. C. C. 483.

(d) Where informal complaint cov-
ering a shipment is not filed within
two years after the cause of action ac-
crued, relief will be denied by the
Commission. Switzer Lumber Co. v. A.
& M. R. R. Co., 22 I. C. C. 471, 475.

(e) While the Commission holds
that it is not necessary that a formal
petition be filed in order to stop the
running of the statute of limitations,
an informal letter or other communica-
tion to accomplish this result must con-
tain all the elements of the claim.
Fisk & Sons v. B. & M. R. R., 19 I.
C. C. 299, 300.

(f) Between Feb. 21 and March 12,
1907, complainant made five shipments
of cement from LaSalle, 111., to Clinton,
la., and Camanche, la. The carriers
only exacted charges based upon a
rate of 6.24c per 100 Ibs. On April 17,
1909, additional charges were collected
on the basis of 7.83c, the lawful pub-
lished rate in effect at the time ship-



ments moved. Petition was filed June
9, 1909. HELD, the statute of limita-
tions began to run from the time when
it became the duty of the carrier to
collect its lawfully published rate, and
the fact that additional charges might
later be collected would not prevent
the running of the statute from the
time when the payment should have
been required. Shoecraft & Son Co. v.
I. C. R. R. Co., 19 I. C. C. 492.

(g) Where a state in a proceeding
before the Commission attacking rates
asks no reparation, it does not stop the
running of the statute of limitations
against claims for reparation for ship-
ments made by citizens of the state
under the rates attacked. National
Refining Co. v. A. T. & S. F. Ry. Co.,
18 I. C. C. 389, 390.

(h) A shipper and a carrier cannot
extend the former's right to recover
reparation by delaying the time of pay-
ment of freight by the shipper. Blinn
Lumber Co. v. S. P. Co., 18 I. C. C.
430, 432.

(i) The period of two years pre-
scribed by the statute within which
the Commission is allowed to award
damages for acts arising under vio-
lations of the provisions of the Act
begins to run at the time when the
shipment is delivered and when it be-
comes the legal duty of the carrier to
collect its lawful charge, and not at
the time of the payment of the freight
by the shipper. (Cockrell & Prouty,
Comm'rs dissenting.) Blinn Lumber
Co. v. S. P. Co., 18 I. C. C. 430, 435.

(j) Shipments moved in October and
November, 1906, but on account of a
controversy as to the rates lawfully
applicable the payment of charges was
delayed until June 3, 1909, and com-
plaint was not filed until August 17,
1909. HELD, following Blinn Lumber
Co. v. Southern Pacific Co., 18 I. C. C.
430, more than two years having
elapsed between the delivery of the
shipments and the institution of pro-
ceedings, the claims were barred.
(Prouty & Cockrell, Comm'rs, dissenting.)
Blodgett Milling Co. v. C. I. & S. R. R.
Co., 18 I. C. C. 439, 439.

(k) A cause of action for repara-
tion accrues on the date of delivery of
the shipment. Blinn Lumber Co. v.
S. P. Co., 18 I. C. C. 430; Blodgett



REPARATION, 7 (1) (s)



729



Milling Co. v. C. I. & S. R. R. Co.,
18 I. C. C. 439.

(1) The Commission has no juris-
diction to deal with complaints for repa-
ration in any way unless filed with or pre-
sented to it within the period specified
in the statute. Werner Saw Mill Co. v.
I. C. R. R. Co., 17 I. C. C. 388, 389.

(m) The Commission cannot sanction
a practice that would permit the revival
of claims barred by the statute by subse-
quently attaching them to other claims
presented within the prescribed period.
Werner Saw Mill Co. v. I. C. R. R. Co.,
17 I. C. C. 388, 390.

(n) Where a complaint seeking repa-
ration for certain claims is filed before
the expiration of the limitation period
applicable to said claims and upon mo-
tion of complainant is dismissed without
prejudice, the Commission may in its
discretion reinstate said original peti-
tion by a nunc pro tune order as of date
of the filing of the complaint in the first
place, but it cannot reinstate such a
complaint when the same has been
amended to include claims not included
in the original complaint and which are
at the time of the motion for reinstate-
ment barred by the statute of limitations.
The Commission cannot sanction a prac-
tice permitting the revival of claims
barred by the statute by subsequently
attaching them to other claims presented
within the prescribed period, despite any
promises on the part of defendant car-
riers that they will not take advantage
of the statute of limitations. The Com-
mission has no jurisdiction to deal with
complaints for reparation in any way un-
less filed with or presented to it within
the period specified by the statute. It is
not vested with the powers of a court
of equity to relieve from hardships re-
sulting from improvident arrangements or
agreements between the parties. Louis
Werner Sawmill Co. v. I. C R. R. Co.,
17 I. C. C. 388, 389-391.

(o) On January 23, 1906, complainant
shipped clothing from New York City to
Janesville, Wis., via the Erie, the Chicago
& Erie, and the C. & N. W. R. Rs. No
complaint, formal or informal, was filed
against the Erie R. R. and the Erie &
Chicago R. R. until September 24, 1909.
May 1, 1907, complainant filed an in-
tended formal complaint against the C. &
N. W. R. R. alone. The Commission ad-
vised that the complaint was faulty and



suggested that it make informal complaint
to the C. & N. W. R. R., which was im-
mediately done. March 12, 1908, com-
plainant called the Commission's atten-
tion to the fact that no reply had been
received from the C. & N. W. R. R.,
and it was then discovered that the
original file of papers had been lost.
May 15, 1908, complainant furnished du-
plicate of original complaint, which was
brought to the attention of the C. &
N. W. R. R. On May 27. 1908, the C. &
N. W. R. R. responded, denying liability.
Complainant was advised of this and filed
complaint September 24, 1909. HELD,
with respect to the Erie R. R. and the
Chicago & Erie R. R. the statute of limi-
tations had run, but not so with respect
to the Cr& N. W. R. R. Amos Rehberg
& Co. v. Erie R. R. Co., 17 I. C. C. 508,
510.

(p) Where a complaint is filed July 1,
1908, all damages which may have ac-
crued prior to July 1, 1906, are barred by
the statute. Pilant v. A. T. & S. F. Ry.
Co., 15 I. C. C. 178, 181.

(q) On a shipment made May 26,
1906, freight charges were i-aid July 10,
1906, and the complaint filed June 23,
1908. HELD, said claim was not barred
since all claims whether arising prior or
subsequent to August 28, 1906, are en-
titled to two years for presentation, the
one year proviso applying only to claims
that accrued more than two years prior
to said date. Kile & Morgan Co. v. Deep-
water Ry. Co., 15 I. C. C. 235, 237.

(r) On account of misrouting a car-
load of lumber from Harper, W. Va., con-
signed to New Haven, Conn., and intended
by the shipper to be reconsigned at New
York to Nashua, N. H., complainant ship-
per was subjected to an extra charge of
the local rate from New Haven to
Nashua. HELD, the cause of action to
recover reparation for said extra charge
arose not on the date of misrouting or
on the date delivery was made, but on
the date the freight charges were paid.
Kile & Morgan Co. v. Deepwater Ry. Co.,
15 I. C. C. 235, 236.

(s) Alleged excessive charges on car-
loads of sawmill machinery from Oge-
maw, Ark., to Sodus, La., were paid June
6, 1905, and the complaint, filed Septem-
ber 9, 1907, alleged the unreasonable and
discriminatory character of the rate sole-
ly for the purpose of claiming reparation.
HELD, the claim being barred by the stat-



730



REPARATION, 7 (t) 8 (c)



ute of limitations, the complaint should
be dismissed. Pleasant Hill Lumber Co.
v. St. L. S. W. Ry. Co., 15 I. C. C. 532.

(t) The filing of a petition on the 28th
of August, 1907, is within the proviso
that claims accruing prior to the passage
of the amended Act, June 29, 1906, may be
presented within one year. Goff-Kirby
Coal Co. v. Bessemer & Lake Erie R. R.
Co., 13 I. C. C. 383, 386.

(u) Under the amendatory act of
June 29, 1906, a complaint filed after
Aug. 28, 1907, is barred by the statute
of limitations except as to shipments
made within two years immediately pre-
ceding the date of the filing of said com-
plaint. Missouri & Kansas Shippers'
Ass'n v. A. T. & S. F. Ry. Co., 13 I C. C.
411, 413.

(v) Complainant, a voluntary associa-
tion of merchants at Kansas City, Mo.,
asked reparation for switching charges
collected from members of the associa-
tion on carload shipments of hay, coal,
grain and wool consigned to Kansas City.
The members of the association, on
whose behalf the demands were made,
were not named in the complaints, nor
did the complaints by date, weight, car
number,, point of origin, name of con-
signor or consignee, amount of freight
collected, or otherwise, set up and de-
scribe the particular shipments on which
reparation was claimed. The complaint
in the first case, filed August 9, 1907, de-
manded reparation on all shipments made
prior to August 28, 1906, regardless of
date. The other three complaints were
filed Aug. 22, 1907. The first of these
covered shipments made from 1902 to
1906; the second, shipments during 1903-
1904, and until May 31, 1905; and in the
third reparation was asked on shipments
made between September 22, 1902, and
January 2, 1904. Said complaints were
filed under the urgent request of the sec-
retary of complainant who advised mem-
bers that the limitation period was about
to expire, and that they would not have
time to institute complaints individually.
HELD, such general complaints, failing
as they did to specify the members prefer-
ring same and to point out the shipments
in question, could not operate to stop tl^c
running of the statute of limitations.
Complaints dismissed. Missouri & Kan-
sas Shippers' Ass'n v. A. T. & S. F. Ry.
Co., 13 I. C. C. 411, 416.

(w) Where a defendant carrier was
khown to have failed to supply complain-



ant coal operators their just proportion
of cars, complainants attempted to show
that if they had been properly supplied,
had had sufficient laborers, had sold all
the coal so mined and shipped it at about
the average mine price for the period in
question, they would have made a profit
on a certain number of supposed tons of
coal equal to the difference between the
said average price per ton and the esti-
mated cost of producing the coal. On
this evidence complainants sought repa-
ration. HELD, the evidence was too
vague and indefinite. Reparation denied.
Royal Coal & Coke Co. v. Southern Ry.
Co., 13 I. C. C. 4.J, 448.

III. CIRCUMSTANCES DETERMINING
RIGHT.

8. Erroneous Publication.

See Discrimination, 4 (s) ; Evidence,
29 (m); Express Companies,
11 (5) (a), 11 (9) (b), 22 (a);
Facilities and Privileges. 17 (k),
21 (bb); Overcharges, 8 (d), (e);
Special Contracts, 2 (dd), (mm);
Undercharges, 2 (d), (e), (f).

(a) Defendant established a rate on
sheep of $44 for a single deck car, and
$134 for a double deck car, the latter
quotation being an error. Prior to these
rates the charge had been $40 for either
a single or a double deck car. Subse-
quently the rates were reduced to the old
basis of $40 for either kind of a car.
Complainants, who were in a position to
ship sheep in double deck cars, elected to
make each shipment in two single deck
cars under the $44 rate rather than to
ship in double-deck cars carrying the
erroneous rate of $134. HELD, that in
electing to ship in single-deck cars com-
plainants adopted the only feasible meth-
od of avoiding an unconscionable and
admittedly unlawful charge, and even
then they were obliged to pay double the
amount for which they ought to have ob-
tained the desired transportation. Repa-
ration awarded. Bowles & McCandless
v. L. & N. R. R. Co., 19 I. C. C. 563.

(b) A charge of 33c per 100 Ibs. on
a shipment of metallic cartridges from
Kings Mills, O., to Muncie, Ind., is excess-
ive, such charge being due to a typo-
graphical error in the published tariff,
which should have read 23c, and which
was subsequently corrected so to read.
Reparation awarded. Goddard Co. v. C.
C. C. & St. L. Ry. Co., 16 I. C. C. 298, 299.

(c) Higher rate charged because lower
rate inadvertently omitted from tariff.



REPARATION, 8 (d) (w)



731



Tariff adjusted. Reparation awarded.
Northern Wood Co. v. C. M. & St. P.
Ry. Co., Unrep. Op. 7.

(d) Publication of higher rate due to
error. Higher rate held unreasonable.
Stewart Produce Co. v. C. M. & St. P.