Opinion
No. 6100.
May 25, 1931.
Appeal from the District Court of the United States for the Southern District of Mississippi; Allen Cox, Judge.
Action by the Merchants' Specialty Company against the Gulf, Mobile Northern Railroad Company and others. Judgment for the plaintiff, and the defendants appeal.
Affirmed.
Albert S. Bozeman, of Meridian, Miss., and Harry McCall and R.E. Milling, Jr., both of New Orleans, La. (Victor Leovy, of New Orleans, La., on the brief), for appellants.
Gabe Jacobson, of Meridian, Miss. (Chas. B. Cameron and C.W. Hayward, both of Meridian, Miss., on the brief), for appellee.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
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 against the shipper for reimbursement. It was therefore entitled to sue. Davis v. Mobile Ohio R.R. Co. (C.C.A.) 194 F. 374.
The judgment is affirmed.