Citations
- 60 F.2d 394
Full opinion text
BOOTH, Circuit Judge.
This is an appeal from a judgment in favor of defendant in an action at law brought by the Northern Pacific Railway Company against the Van Dusen Harrington Company to recover tariff charges on 103 carload ship-meats of grain over ilie line of said railway company from points west of Staples, Minn., destined to Minneapolis, Minn.
On a former appeal, this court reversed a judgment obtained by the railway company, and remanded the cause. 32 F.(2d) 466.
The plaintiff alleg-ed that a $2.25 charge on each car became applicable under rule 1 contained in the Diversion and Reeonsigning Tariff, N. P. Ry. No. 770-N, I. C. C. N. P. No. 7641, and supplements thereto. This was denied by the defendant. The charge was one imposed under- the rule when disposition order of a ear was not given until after the expiration of the “free time.”
A jury was duly waived by stipulation, and the case was tried to the court. Evidence was offered as to the handling of 14 cars out 'of the total number; it being stipulated that if the decision of the ease was for plaintiff, the court could allow plaintiff to prove the handling record of the other ears.
Rule 1 referred to was designated: “Rules and Charges Governing Grain, * * " Carloads, Held in Cars on Track for Inspection and Disposition Orders Incident Thereto at Billed Destination or at Point Intermediate Thereto.”
The rule, so far as here material, reads as follows:
“Rule 1. Grain, * * * carloads, will be placed on hold tracks of this carrier * * *, and notice of the location of the hold tracks on which the ears are placed sent to the consignee, or posted on the bulletin board where such practice is in vogue, for the purpose of inspection (See Note 1), and held on such tracks or other tracks for disposition orders, at either the bill destination or a point directly intermediate thereto. Upon cars so placed and held the following charges will apply:
“(a) Grain and Seeds — When disposition order is received prior, to' the expiration of the free time provided for in the National Code of Demurrage Rules as published in I. C. C. No. 1340, issued by B. T. Jones, Agent, supplements thereto and reissues thereof, no charge.
“When disposition order is given after the expiration of the free time here prescribed * * * $2.25 per car. * * *
“Note 1 — The inspection as referred to is:
“(a) On Grain and Seeds, that made under National, State or Board of Trade requirements by competent and impartial authority independent of both vendor and vendee.”
The main facts are not in dispute. The ears in question (identified in Exhibit Y received in evidence) wer on the first hearing are not reconsidered, provided the evidence was substantially the same upon both trials. Under such circumstances questions of law determined on a writ of error or appeal are the law of the case, both for the trial court and this eourt on a second writ of error or appeal. '■ * *
“There should be and is an exception to this rule, viz.: If convinced that a former decision is clearly erroneous and unsound, and works manifest injustice to the parties, an appellate court should not deem itself bound as to .such parties by the rule of ‘law of,' the case.’ It is the general practice of courts, however, ‘to refuse to reopen what has been decided.’ ”
In Page v. Arkansas Natural Gas Corporation, 53 F.(2d) 27, the court, again speaking by Judge Kenyon, said at page 31 : “The rule of ‘the law of the case’ is of course recognized by this court. The theory is that what ha,s once been determined should not be reopened, well expressed by Mr. Justice Holmes in Messinger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 740, 56 L. Ed. 1152: ‘In the absence of statute the phrase, “law of the ease,” as applied to the effect of previous orders on the later action of the eourt rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ ”
See, also, City and County of Denver v. Denver Tramway Corp. (C. C. A.) 23 F.(2d) 287; National Bank of Commerce v. United States (C. C. A.) 224 F. 679; Federal Reserve Bank v. Omaha Nat. Bank (C. C. A.) 45 F.(2d) 511.
Bearing in mind the principles thus stated by this and other courts, we turn to the inquiry whether the evidence on the question of the compliance with rule 1 by the railway .company was substantially the same on the second trial as on the first.
The record on the first trial clearly shows that the issue as to such compliance was involved; that the facts were largely stipulated relative to what was done at Staples and how it was done; and the same is true as to’ what was done in the railroad yard at Minneapolis on the arrival of the cars at that point.
The testimony on the second trial covered these mailers more in detail, and explained the “grab” book, which was not introduced at the first trial.
The trial court held, on the first trial, that rule 1 was complied with by the railway company.
On the first appeal, touching the question of compliance with rule 1, this court said, at page 470 of 32 F.(2d): “That tariff purported to provide literally that which the Commission thought to be a,n essential basis for a charge of this nature. It is apparent, however, that the provisions of the tariff, thus embodying the suggestions of the Interstate Commerce Commission, were not observed in practice. No notice of location of the hold tracks on which the cars were placed was sent to the consignee, or posted on any bulletin board. In the petition, in the stipulations filed, and in the testimony of the assistant general freight agent of appellee, it is stated that the hold tracks in question were located within the switching limits of Minneapolis. At the argument, counsel for appellee contended that the tracks at Staples —which are called ‘sampling tracks,’ where samples were taken, are hold tracks within the meaning of the tariff. Even so, no information as to the location of such tracks was given other than the fact that the ears in question had reached the station at Staples; and those tracks could not discharge the functions required of hold tracks, winch are supposed to be located conveniently for the taking of new samples if desired. It is insisted by appellant that the strict observance of this rule is important for protection of consignee in case additional samples are required in order that the same may be examined and a disposition of the cars made within the free time. It is probably true that upon inquiry at the yard office the consignees could ascertain the location of the hold tracks in North Minneapolis with gr'eater or less delay, but it cannot be denied that the terms of the tariff, which would appear to be conditions precedent to the right to impose these reconsignment charges, were-not observed. Such tariffs are construed strictly. The earlier was not compelled to publish its tariff in- these precise terms; having done so, it must abide by them.”
A careful examination of the record on the first trial and a comparison with the record on the second trial has led us to the conclusions that the question of the compliance by the railway company with rule 1 was in issue on both trials; that this court, on the first appeal, held that there was not a compliance; that the main facts disclosed by the evidence on this issue at the second trial were substantially the same as the facts stipulated on the first trial, though more detailed in some respects.
We are not clearly convinced that the decision on the former appeal was erroneous and unsound, but on the contrary think it was correct; the parties were simply held to the plain, unequivocal provisions of the tariff.
The law of the case, therefore, applies and renders it unnecessary and improper for us to pass upon the merits of the question a second time.
The judgment is affirmed.