LEIGH ELLIS CO. v. DAVIS

Mr. Edgar Watkins for plaintiff in error.

The Transportation Act 1920, § 206(a), makes the limitation in this case "within the periods of limitation now prescribed by state or federal statutes but not later than two years from the date of the passage of this Act." The only federal statute that could apply is that contained in Jud. Code, § 24, par. 20. If the federal statute does not apply, that of the State of the forum must apply both by the terms of § 206(a) and under the decisions of this Court. Chattanooga Foundry Pipe Works v. Atlanta, 203 U.S. 390; § 1538, Rev. Stats. The shortest applicable Georgia statute is four years. Code § 4368; Southern Express Co. v. Sinclair, 135 Ga. 155. The applicable Alabama statute prescribes a limitation of six years. Code §§ 2615, 4832, 4835 (4); Alabama, etc., R.R. Co. v. Eichofer, 100 Ala. 224. Apply any of these statutes, and the case is not barred.

Section 206(a) of the Transportation Act supersedes all other limitations. To deprive plaintiff in error of its rights under this section by holding that the time within which it had to bring suit was governed by a clause in the bills of lading, would require this Court in effect to read into the section words which are not there.

No convincing justification can be advanced for an interpretation which ignores the express words used and deprives plaintiff in error of its rights. Bearing in mind that the purpose of the section was to afford relief to citizens for damages done them by their government, it is clear that a liberal construction is more consonant with justice and more in keeping with the purpose of Congress than an interpretation which deprives citizens of their just rights under a plain statute and defeats the expressed object of Congress.

The carriers have filed their tariffs including bills of lading with the Interstate Commerce Commission and the provisions thereof are binding on all contracts of shipments of property, whether or not a bill of lading is actually issued. Lazarus v. New York Central R.R. Co., 271 F. 93; 278 F. 900. Therefore, if the narrow interpretation of the lower courts is affirmed, § 206(a) can apply only to "causes of action" for personal injuries and for damages to property arising other than in transportation. Such an interpretation results in causes of action being excluded from the section although included in the express words of the statute.

Contracts made by the Director General and shippers were between the government and the shippers. Missouri Pacific R.R. Co. v. Ault, 256 U.S. 554. The lower courts in this case have not taken this fact into consideration. Lazarus v. New York Central R.R. Co., 271 F. 93; 278 F. 900, distinguished.

This Court judicially knows that prior to the Transportation Act, 1920, shippers with claims against the Government arising out of federal control of the railroads were uncertain how and where to bring suit against the Government, as is reflected by the conflicting decisions of the lower federal courts. At the time the original suit in this case was filed many courts had held that the statutory venue fixed by § 10 of the Federal Control Act controlled, while other courts had held that General Order No. 18 of the Director General controlled. This conflict was not finally settled by this court until its decision in Alabama Vicksburg Ry. Co. v. Journey, 257 U.S. 111. These facts were before Congress when it passed § 206(a), and since Congress granted the right to sue and in the same statute prescribed a limitation period, it is a proper assumption that Congress thought a longer period of limitations on claims arising during federal control was desirable to afford all claimants an adequate opportunity to enforce their rights. The intention of Congress was to fix a general statute of limitations applicable to all claims against the Government arising out of federal control so that equal justice might be meted out to all.

The suit here is not for a failure to deliver property received by a carrier, but for the wrong of the carrier in issuing a false bill of lading.

The words "loss" and "damage" are broad in their signification, and "damage" might itself be broad enough to include the right to recover for any breach of a legal duty. These words, however, in transportation, have a conventional meaning clearly apparent from the context, and the particular contract sued on here shows definitely such a meaning and a definite limitation.

If there be any doubt as to the construction of the limitation clause, the doubt should be resolved against the limitation. Lynchburg Cotton Mill Co. v. Travelers Insurance Co., 140 F. 718; Express Co. v. Caldwell, 21 Wall. 264.

The contract provision limiting the time for suit is under the facts pleaded unreasonable and void. Decker Sons v. Director General, 55 I.C.C. 453. The effect of the decision of the Interstate Commerce Commission is to nullify all contract limitations then and theretofore contained in the bills of lading.

It is not doubted and has frequently been held that the period of two years in which suits may be filed is ordinarily a reasonable provision, but the peculiar circumstances in this case, which are similar to the facts considered by the Commission, show that even if the contract limitation is applied, it is unreasonable. The Director General, whom the present agent of the United States succeeds, and all the railroads of the country were parties to the judgment of the Commission in the Decker Case, supra.

The decision of the Commission holding the particular contract limitation here relied upon to be unreasonable, void and in violation of the Act to Regulate Commerce, becomes the law unless set aside in a direct proceeding. No such proceedings has been brought and that decision is now the law binding on all courts. Interstate Commerce Commission v. Union Pacific R.R. Co., 222 U.S. 541; Atchison, Topeka Santa Fe Ry. Co. v. United States, 232 U.S. 199.

The United States, the real party in interest, by act of Congress, fixed the statute of limitation and granted the right to file this suit. By that statute the United States disregarded, repealed and set aside any contract limitation. Further, the United States waived the limitation by the representations made by the Director General in Decker v. Director General, 55 I.C.C. 455, 456.

The filing of a former suit containing essentially the same allegations as this suit tolled the statute of limitations. Plaintiff filed its first suit within two years from the dates of the bills of lading. The first suit was dismissed because in fixing the venue, § 10 of the Federal Control Act was literally followed and the orders of the Director General were not. Ellis v. Atlanta, B. A. Ry. Co., 270 F. 279. The false bills of lading were issued March 25, 26, 1918. A claim for the amount sued on was filed April 23, 1918. That claim was finally denied July 28, 1919. The suit now before the Court was filed January 29, 1921. Semmes v. Insurance Co., 13 Wall. 158; Rogers v. Home Insurance Co., 95 F. 109.

If the facts found by the Commission are, true, — and we think the law conclusively presumes they are, — the claimed limitation provisions are void; if the findings of the Commission are not conclusive, the issue is one for a jury.

Order bills of lading are made negotiable by act of Congress. Act of August 29, 1916, c. 415, 39 Stat. 538; Roberts, Federal Liability of Carriers, § 351; Chicago, R.I. P. Ry. Co. v. Cleveland, 61 Okla. 64; Wichita Falls Co. v. Moody Co., 154 S.W. 1032, 1044; Thompson v. Hibernia Bank Trust Co., 148 La. 57; Yazoo Mississippi Valley R.R. Co. v. Bent, 94 Miss. 681; Lloyd v. Kansas City, M. B.R.R. Co., 88 Miss. 422; Pollard v. Reardon, 65 F. 848; National Bank v. Kershaw Oil Mill, 202 F. 90; Chicago, M. St. P. Ry. Co. v. McCaull-Dinsmore Co., 253 U.S. 97; Atlantic Coast Line R.R. Co. v. Luke Fleming, 20 Ga. App. 761; Louisville Nashville R.R. Co. v. Pferdmenges, Preyer Co., 8 Ga. App. 81; Illinois Central R.R. Co. v. Doughty, 10 Ga. App. 317; American National Bank v. Georgia R.R. Co., 96 Ga. 665.

Sections 20 and 21 of the Bills of Lading Act, supra, were inapplicable to these shipments.

If the words "weight (subject to correction)" had any meaning in the bills of lading sued on, they meant only such reasonable differences in named and actual weights as would ordinarily occur in twice weighing the same commodity.

Under the facts, it was error to dismiss the case because if the law is not as contended for by plaintiff in error, the facts pleaded require submission to a jury of both issues.

Mr. Walter T. Colquitt, with whom Mr. Morris Brandon, Mr. John A. Hynds and Mr. A.A. McLaughlin were on the brief, for defendant in error.