No. 273621

CICARDI BROTHERS FRUIT & PRODUCE COMPANY ET AL. v. ATLANTIC COAST LINE RAILROAD COMPANY ET AL.

Decided April 4, 1938

Upon reconsideration, finding in prior report, 223 I. C. C. 206, that informal complaint No. 146406 was sufficient to toll the running of the statute of limitations, affirmed.

R. W. Schapanski for complainants and intervener.

Henry Thurtell, Chas. P. Reynolds, and Horace L. Walker for defendants.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

In the prior report, 223 I. C. C. 206, decided July 21, 1937, division 3 found that the rates on fresh vegetables, in carloads, from certain origins in North Carolina, South Carolina, Georgia, and Florida, to certain destinations in official territory were unreasonable and in certain instances inapplicable, and that complainants and interveners were entitled to reparation. An order awarding reparation was entered. The formal complaints in No. 27370, filed April 9, 1936, No. 27424, filed June 1, 1936, No. 27417, filed May 25, 1936, and No. 27417 (Sub-No. 1), filed August 7, 1936, embrace among others, allegations of informal complaint No. 146406, filed April 26, 1930. Over defendants' objection, the division found that informal complaint No. 146406 was sufficient to stop the running of the statute of limitations and that the claims for reparation on shipments sought to be included therein were not barred.

Upon petition of defendants for reconsideration of the prior decision, insofar as it finds that the claims for reparation on shipments said to have been included in informal complaint No. 146406 are not barred by the statute, we reopened the proceedings for reconsideration.

This report embraces also No. 27370, Gridley, Maxon & Company, Incorporated, et al. . Atlantic Coast Line Railroad Company et al.; No. 27417, Leon Friedlander & Company et al. v. Atlantic Coast Line Railroad Company et al.; No. 27417 (Sub-No. 1), Biagi Fruit & Produce Company et al. v. Atlantic Coast Line Railroad Company et al.; and No. 27424, Forest City-Weingart Produce Company et al. v. Atlantic Coast Line Railroad Company et al.

In respect of the sufficiency of the informal complaint the prior report reads:

Defendants contend that informal complaint no. 146406 is not of a character that is sufficient to meet the requirements of our Rules of Practice. Receipt of this complaint was acknowledged by the Secretary of the Commission in a communication dated May 16, 1930, which contained no criticism of the complaint, and defendants later agreed, without objection as to the sufficiency of the complaint, that it should be held in abeyance until the determination of pending formal proceedings. It does not contain the names of all of the origins and destinations of the shipments involved, or any routing, but lists the names of all of the States in which the origins and destinations are situated, together with representative origins and destinations, and the names of all participating carriers. It names 7 of the 35 origins and 4 of the 6 destinations of shipments claimed to be embraced thereby. It is broad and definite enough in its terms to include all of the shipments sought to be included. Our Rules of Practice require "such data as will serve to identify with reasonable definiteness the shipments or other transportation services in respect of which recovery is sought." A finding that this informal complaint is lacking in detail, and therefore insufficient, upon objection made by defendants after the matter has been called for hearing, would be an injustice to complainants, who were led to believe that the complaint is sufficient by the acceptance thereof without objection when filed.

In their petition defendants call attention to Weinberg & Gilbert v. Atlantic Coast Line R. Co., 208 I. C. C. 749, decided May 8, 1935, wherein we found that an informal complaint, No. 150519, filed therein, was insufficient to stop the running of the statute, and that the claims for reparation based thereon were barred. In respect of that informal complaint we said:

Strict compliance with the rules of pleading is not required by us. However, when the question of damages is raised and reparation is sought, defendants have a right to be informed with reasonable definiteness of the grounds on which the claim is based, and the purpose of the foregoing rule is to require the allegation of such facts as will put the defendants on notice of the issues that they are called upon to meet. Given the most liberal construction, the informal complaint, as amended, satisfies neither the requirements of our Rules of Practice, nor the elementary principles of proper pleading.

Informal complaints No. 146406, filed in the instant proceedings, and No. 150519, filed in Weinberg & Gilbert v. Atlantic Coast Line R. Co., supra, were prepared by the same individual. A comparison of the two establishes that they are essentially similar.

While the findings in Weinberg & Gilbert v. Atlantic Coast Line R. Co., supra, were in part predicated upon a variance disclosed between the pleadings and the evidence, nevertheless there is some inconsistency between that case and the prior report in the instant case on the question of the sufficiency of a complaint to stop the running of the statute of limitations, and this question will now be given further consideration.

The pertinent provisions of our rules of practice (rule III), effective at the time the informal complaint was filed, are set forth below:

(c) No form of informal complaint is prescribed, but in substance the letter or other writing must contain the essential elements of a complaint, including name and address of the complainant, the name of the carrier or carriers against which complaint is made, a statement that the act has been violated by the carrier or carriers named, indicating when, where, and how, and a request for affirmative relief. *

(e) * * * A complaint for the recovery of damages may be informal, but must be filed within the statutory period, and, if informal, should contain, in addition to the matters above indicated, such data [see footnote] as will serve to identify with reasonable definiteness the shipments or other transportation services in respect of which recovery is sought, the carriers participating, the kind and amount of injury sustained,

*

[footnote] Illustrative of pertinent data are, in case of shipments, their dates, origins, destinations, consignors, and consignees, dates of delivery or tender of delivery, car numbers and initials, if in carloads, routes of movements, if known, commodities transported, weight, charges assessed, at what rate, when and by whom paid, and by whom borne.

(q) The Commission will consider as in substantial compliance with the statute of limitations a complaint in which the complainant alleges that the matters complained of, if continued in the future, will constitute violations of the act in particulars and to the extent indicated, and prays reparation accordingly on all shipments affected thereby which may move during the pendency of the proceeding and on which the transportation charges shall be paid and borne by the complainant.

The approved form of complaint contained in our rules of practice sets forth, among other things, these instructions:

state in this and subsequent paragraphs the matter or matters intended to be complained of, naming every rate, fare, charge, classification, regulation, or practice the lawfulness of which is challenged, and also, if practicable, each point of origin and points of destination between which the rates, etc., complained of are applied. Where it is impracticable to designate each point, defined territorial or rate groups and typical points should be designated. Whenever practicable, tariff references should be given. See rule III.

The particular objections to the complaint herein urged by defendants are that it did not set forth the specific rates, that it did not identify the shipments by car numbers, specific dates of shipment, or otherwise in specific terms, that it did not specify all of the points of origin and destination, and in general did not show all of the details referred to in our rules of practice.

The hearings in the proceedings embraced in this report were held in 1936, more than six years after the filing of the informal complaint. No question was raised by defendants as to the sufficiency of the informal complaint until the time of the hearings.

Some of our rules of practice relate to matters of form; others to matters of substance. Obviously, a complaint which is merely defective in form would be sufficient to stop the running of the statute. For that purpose it is not essential that our rules of practice be complied with in every detail. For example it is a well-established rule that where a complaint is returned by us for minor corrections the statute is tolled as of original date of receipt of the complaint. Hales & Hunter Co. v. Chicago & A. R. Co., 153 I. C. C. 61, C. F. Arnold & Co. v. Texas & N. O. R. Co., 155 I. C. C. 424, Border Research Corp. v. Orange & N. W. R. Co., 176 I. C. C. 201, Caruso, Rinella, Battaglia Co., Inc. v. C., N. O. & T. P. Ry. Co., 194 I. C. C. 556, Anderson Oil Co. v. Atchison, T. & S. F. Ry. Co. 198 I. C. C. 525.

Inasmuch as lapse of the periods specified in section 16 (3) of the act not only bars the remedy but also destroys the liability, A. J. Phillips Co. v. Grand Trunk W. Ry. Co., 236 U. S. 662, in order to stop the running of the statute it is essential that a complaint be sufficient in substance. Laches on the part of defendants in raising objections thereto is immaterial. Blackman & Griffin Co. v. Akron, C. & Y. Ry. Co., 49 I. C. C. 649.

The complaint here under consideration was sufficient in substance. It contained the essential elements specified in our rules and sufficiently apprised defendants of the nature of the claims. Some of the matters mentioned in the rules merely purport to be illustrative. Numerous shipments on which reparation is sought moved subsequent to the filing of the informal complaint and necessarily the details pertaining to such shipments could not have been given therein. The informal complaint contained a prayer for reparation on shipments moving during the pendency thereof, as authorized by rule III (q) set forth above.

Prior to the decision in Weinberg & Gilbert v. Atlantic Coast Line R. Co., supra, it had long been the rule that a complaint which apprised a defendant of the nature of a claim, though couched in general terms and lacking in specific details, was sufficient to stop the running of the statute. Anderson Oil Co. v. Atchison, T. & S. F. Ry. Co., supra. The earlier cases are cited in note 3, page 227, of the report in Louisville & N. R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217, wherein the Supreme Court explicitly ruled upon the question here considered. The court there stated:

This claim [that the action was barred] rests primarily upon the assertion that the prayer is so general as to be, under sections 13 and 16 of the Act and the rules of the Commission, insufficient to invoke its jurisdiction to award reparation. The argument is that a petition before the Commission for reparation must give not only the names of the parties complainant and of the carrier

against which the claim is asserted, but also a detailed description of the specific claims arising out of the several shipments involved; that this detail is indispensable, because under section 13 the carrier has, after the presentation of the claim to the Commission, a locus penitentiae in which to determine whether he will satisfy the claim or contest it; and that a later specification of the claim is of no avail, because the filing of such a definite description of the claim with the Commission within the two years is a jurisdictional requirement. It is true that the two-year requirement is jurisdictional. United States ez rel. Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638. But no statute or rule imposes upon the Commission procedure so exacting as to make fatal mere failure to present within the period of limitation the detail of a statement which under the procedure prevailing in courts of law may ordinarily be supplied by amendment or a bill of particulars. As was clearly shown by Judge Knapp in Arcadia Mills v. Carolina, Clinchfield & Ohio Ry. Co., 293 Fed. 639, the contention of the Louisville & Nashville would involve the adoption of procedure contrary to the long established practice of the Commission and would defeat the convenient and effective administration of the Act.

In the same case the court held that reparation was properly awarded on shipments moving during the pendency of a complaint, even though the complaint did not contain a specific prayer to that effect. In regard to this matter the court stated:

A reading of the prayer as seeking damages for losses suffered in the past through the exaction of existing rates, but not for losses which will result while the proceeding to reduce them is pending, would deny to the words used their natural meaning and impute to the complainant a strange eccentricity of desire. The action of the Commission was in harmony with its own long settled practice and with the practice of courts in analogous cases.'

Hereinabove we have considered the rights and obligations of the parties from a strictly legalistic standpoint. While we have concluded that the informal complaint under consideration was sufficient in substance to stop the running of the statute, it is not to be understood that failure to furnish details referred to in our rules of practice, wherever possible, is a practice that meets with our approval. The efficient functioning of our Bureau of Informal Cases and the settlement of claims with reasonable expedition require that details, if available, be included in informal complaints. Failure to do so results in correspondence and delays that otherwise would be unnecessary.

Frequently we have occasion to direct attention to defects in complaints. However, it should not be understood that the defendants are thereby relieved of any obligation. This is particularly true when the claim is that a complaint is set forth in terms that are deemed to be too general. Objections to a complaint should be made promptly. Ordinarily such objections cannot be countenanced if delayed until the day of the hearing. It is a general rule of pro

Note 5, 269 U. S. page 229, cites numerous cases.