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to the Commission more than two years subsequent to the delivery of the shipment to the consignee are barred by the statute of limitations by the terms of the Act.72 The filing of each claim is, in essence, an independent proceeding on the part of that complainant, and the statute of limitations must run from the date of the filing in each individual case.73 Despite promises by carriers not to take advantage of the period of limitation in the Act, the Commission will not take action after that period has passed.74 When reparation is for the first time asked by amendment, the time of the amendment determines the limitation.75 The filing of an informal complaint by a consignee stops the running of the statute for the benefit of the consignor, though the latter did not file his formal complaint within two years from the time the cause of action accrued.76

§ 1111. Dismissal when order unnecessary.

When upon investigation of a complaint the carrier finds that the grievance once existed, but has been removed by the carrier, the petition will be dismissed." This is true

72 Coffers Box Lumber Co. V. C. & N. W. Ry., 25 I. C. C. 249.

73 In re Advances on Livestock, 28 I. C. C. 332; see also Beekman Lumber Co. v. St. L. & S. F. R. R., 21 I. C. C. 270.

74 Werner Saw Mill Co. v. Illinois Central R. R., 17 I. C. C. 388; see also Meeker v. Lehigh V. R. R., 23 I. C. C. 480.

75 East St. Louis Walnut Co. v. St. Louis S. W. Ry., 17 I. C. C. 582. But see also Montana Ice. Co. v. D., L. & W. Ry., 21 I. C. C. 45.

76 Youngblood v. T. & P. Ry., 21 I. C. C. 569; see also Gamble-Robinson Commission Co. v. St. L. & S. F. Ry., 119 I. C. C. 114.

The rule followed by the Commission that ordinarily reparation

will not be awarded unless complaint is filed or rate complained of is reduced within six months after traffic moves is confined to informal matters. Riverside Mills v. G. R. R., 20 I. C.. C. 423. But the running of the statute is not barred by presentation of an informal complaint, where complainant failed to present formal complaint until five years later. Dillon Coal & Transfer Co. v. O. S. L. R. R. Co., 28 I. C. C. 91.

77 Fulton v. Chicago, S. P., M. & D. R. R., 1 Int. Com. Rep. 375, 1 I. C. C. 104; Lincoln Board of Trade v. Union P. R. R., 2 Int. Com. Rep. 101, 2 I. C. C. 229; Harris v. Duval, 2 Int. Com. Rep. 514; Pennsylvania Co. v. Louisville, N. A. & C. R. R., 2 Int. Com. Rep.

though the grievance was removed after the beginning of the litigation; and this rule applies even after the hearing has been had.78 Similarly a complaint will be dismissed as to one carrier out of several defendants where it appears that such carrier did not participate in the rates in question.79 Under section 13 of the Act a carrier has a definite locus penitentiæ in order to determine whether it will yield to the demand made or contest it; and the carrier has the right to have the complaint so stated as to afford it the necessary information to enable it to determine whether to request the authority of the Commission to satisfy the demand or to make à formal answer. 80

Topic D. Evidence and Burden of Proof

§ 1112. Rules of evidence.

Generally speaking the ordinary rules of evidence are enforced in proceedings before the Commission; thus the rule as to parol evidence appears to be enforced. So terms of art, or terms peculiar to any occupation or business, used in a classification sheet to designate the product of a particular employment, are supposed to be understood in that employment; and it is not competent for railroad experts, when the meaning of the classification is questioned, to testify in what sense they are understood in classification circles.81 On the same general principle, unauthorized declarations of a depot agent, implying that a tank car which has returned from one long journey is in

603; Rawson v. Newport News & M. V. R. R., 2 Int. Com. Rep. 626; Re Tariffs & Classifications of Pa. R. R., 7 I. C. C. Rep. 177; Paine v. Lehigh Valley R. R., 7 I. C. C. Rep. 218; Montell v. Baltimore & O. R. R., 7 I. C. C. Rep. 412; Wichita v. Atchison, T. & S. F. R. R., 9 I. C. C. Rep. 507.

78 Michigan Box Co. v. Flint & P. M. R. R., 6 I. C. C. Rep. 335; see also Manufacturers & Jobbers' Union

v. Minneapolis & S. L. Ry., 1 Int. Com. Rep. 630; Boyer v. Chesapeake, O. & S. W. Ry., 7 I. C. C. Rep. 55.

79 Chicago Livestock Exchange v. Chicago G. W. Ry., 10 I. C. C. Rep. 428.

80 Missouri T. K. Shippers' Ass'n v. A., T. & S. F. R. R., 11 I. C. C. 411.

81 Hurlburt v. Lake Shore & M. S. R. R., 2 Int. Com. Rep. 81, 2 I. C. C. 122.

a safe condition to be loaded and started on another long run, are not binding upon the railway company.82 The usual procedure is for witnesses who are officers and agents of the carriers to come prepared with sworn statements taken from the books as to what they actually show and examination and cross-examination verifies these statements and shows what supplements, if any, they need.83 There can be no findings upon evidence so vague and unsatisfactory that no definite finding could safely be predicated thereon.84 But the Commission is more free than a court would be to consider "best knowledge and belief" evidence.85

§ 1113. Res adjudicata.

While Commission is not bound by the doctrine of stare decisis or res adjudicata, a decision recently announced will be given full weight in the determination of the reasonableness per se of rates later in controversy.86 Stare decisis and res adjudicata do not govern the Commission, but the policy behind all these principles is one which cannot be ignored.87 The Commission as a practical matter will be concluded by a decision in prior case, unless it was founded on error or on conditions that have since undergone change. Oftentimes a plea of estoppel will be held not to be good, but usually it will be found in such cases that the circumstances are dissimilar.8 But where the circumstances are appropriate the contention will generally be successful that the issues involved in a particular proceeding were decided in a previous case, and are, there

88

82 Michigan Congress Water Co. v. Chicago & G. T. R. R., 2 Int. Com. Rep. 428, 2 I. C. C. 594.

83 Rice v. Cincinnati, W. & B. R. R., 2 Int. Com. Rep. 584, 595, 3 I. C. C. 186.

84 Iola Portland Cement Co. v. M., K. & T. Ry., 20 I. C. C. 91.

85 Clinton Bridge & Iron Works

v. C., B. & Q. R. R., 20 I. C. C. 416. 86 Commercial Club of Superior v. G. N. Ry., 24 I. C. C. 96.

87 Schmidt & Sons v. M. C. R. R., 23 I. C. C. 684.

88 Flour City S. S. Co. v. L. V. R. R., 24 I. C. C. 179.

89 National Hay Ass'n v. M. C. R. R., 19 I. C. C. 34.

fore, res adjudicata. It should be noted that contracts and tariffs filed with the Commission under the Act are likely to be considered, although not specifically introduced in evidence at the hearing.91 And the findings of the Commission in a former case are conclusive without requiring further evidence.92 If put in evidence the Commission will always give due and respectful consideration to decision of State Commission.93

§ 1114. Insufficient grounds for findings.

The Commission is clear that the reasonableness of railroad rates cannot be proven by categorical answers by a witness stating simply his opinion as to whether the rates now charged are unreasonable.94 Thus a general statement that cost of conducting terminals has increased and more revenue is needed is insufficient.95 It is not enough to have the president and traffic manager testify that, based upon their best judgment and experience, they considered present rates too low and that proposed rates Iwould be reasonable.96 A statement filed showing the cost of operation can have little weight when no witness is qualified to explain it.97 In one proceeding an exhibit was introduced containing cumulative financial, operating, and traffic data for roads which were not parties to the case and did not participate in the movement involved; and the Commission naturally enough said that the bearing of these data upon the controversy before it was not

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apparent.98 Certainly it is not to be expected that an order condemning existing rates, awarding reparation, and establishing a rate for the future can be got from the Commission on a mere complaint, without appearance or evidence.99 Where there is available definite proof, as the expense bills relating to the shipments, the case will be dismissed if the complainant fails to bring them in to prove his contentions. A case will, therefore, be dismissed if the evidence is held insufficient to base a finding thereon.2

§ 1115. Proof of damage required.

Both the duty to make reparation and the amount of reparation to be made must be established by evidence. If the proof fails to establish either point satisfactorily the suit will be dismissed without prejudice. Or the case may, in the discretion of the Commission, be continued for further testimony. So proceedings before the Commission against carriers for discriminations and preferences will be stayed until final determination by the courts in suits pending therein for the enforcement of an order of the Commission, compliance with which by carriers operating in the territory will remove the discriminations and preferences complained of. It is obvious, however, that a shipper declaring false value to secure reduced rate is estopped, in case of loss or damage, from denying correctness of value given. It should be remembered, however,

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98 Lumber Rates from Texas, etc., to Oklahoma and Missouri, 28 I. C. C. 471.

99 Quammen & Austad Lumber Co. v. C., M. & St. P. Ry., 19 I. C. C. 110.

1 Roper Lumber Cedar Co. V. Chicago & N. W. Ry., 16 I. C. C. 397. 2 Moore v. D. & R. G. R. R. Co., 25 I. C. C. 1.

3 Freeman v. Atchison, T. & S. F. R. R., 7 I. C. C. Rep. 202; Commercial Club of Omaha v. Chicago & N. W. Ry., 7 I. C. C. Rep. 386;

Castle v. Baltimore & O. R. R., 8
I. C. C. Rep. 333.

4 Business Men's League of St. Louis v. Atchison, T. & S. F. R. R., 9 I. C. C. Rep. 318; Richmond Elevator Co. v. Pere Marquette R. R., 10 I. C. C. Rep. 629; Dennison L. & P. Co. v. Missouri, K. & T. Ry., 10 I. C. C. Rep. 337.

5 Southern Paint & G. Co. v. Lake Erie & W. Ry., 6 I. C. C. Rep. 284.

132.

In re Express Rates, 28 I. C. C.

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