Opinion · Appellate Division of the Supreme Court of the State of New York

Loomis v. Lehigh Valley Railroad

132 N.Y.S. 138

Type: Opinion
Court: Appellate Division of the Supreme Court of the State of New York
Jurisdiction: New York
Date: 1911-11-15
Topic: general

Kruse, J. (dissenting): I think the judgment should be modified by deducting therefrom the amount of the claims arising out of the interstate *202commerce shipments. If the State courts have jurisdiction at all to determine the merits of those claims, the question must be determined by the Federal statutes relating to interstate commerce, as interpreted by the Federal courts. I think such charges cannot be recovered or allowed under the Federal rule without specifically so providing in the defendant carrier’s published tariff, and concededly no such provision is contained therein. The Interstate Commerce Act requires carriers to file and publish tariff rates, and provides that they shall not charge or receive more or less than the published tariff for the transportation of passengers or property, or for any service in connection therewith, and forbids carriers to extend to a shipper any privileges or facilities in' the transportation of persons or property, except such as are specified in the tariffs.

Citator

UpLaw has not yet analyzed Loomis v. Lehigh Valley Railroad. The absence of a flag is not a finding that it is good law.

Kruse, J. (dissenting):

I think the judgment should be modified by deducting therefrom the amount of the claims arising out of the interstate *202 commerce shipments. If the State courts have jurisdiction at all to determine the merits of those claims, the question must be determined by the Federal statutes relating to interstate commerce, as interpreted by the Federal courts. I think such charges cannot be recovered or allowed under the Federal rule without specifically so providing in the defendant carrier’s published tariff, and concededly no such provision is contained therein.

The Interstate Commerce Act requires carriers to file and publish tariff rates, and provides that they shall not charge or receive more or less than the published tariff for the transportation of passengers or property, or for any service in connection therewith, and forbids carriers to extend to a shipper any privileges or facilities in' the transportation of persons or property, except such as are specified in the tariffs. (Interstate Commerce Act [24 U. S. Stat. at Large, 380, 381], § 6, as amd. by 34 id. 586, 581, § 2.)

There was no express promise by the railroad company to pay the shipper for the lumber for which the plaintiffs seek to recover; and if there had been it would not be enforcible without being specified in the tariff, if the furnishing of such lumber was a service connected with the shipment, or a facility in the transportation thereof within the meaning of the Interstate Commerce Act, as I think it was. As was said by Mr. Justice Scott in Baltimore & Ohio R. R. Co. v. La Due, (128 App. Div. 594, 598): “The resulting effect of the Federal legislation regulating interstate commerce is to remove the question of rate from the realm of private agreement. Every contract of carriage by a common carrier engaged in interstate commerce must, as a matter of. law, be at the rate fixed and established as provided by statute, and no agreement as to the rate to be charged is valid or enforcible if it varies in any degree from the rate thus fixed and established.”

Spring, J., concurred.

Defendant’s exceptions overruled, motion for new trial denied, with costs, and judgment directed far the plaintiffs upon the .verdict, with costs.