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Burrus v. N.-C.-O. Ry. Co.

December 31, 1914


Appeal from Second Judicial District Court, Washoe County; L. N. French, Judge, presiding.

James Glynn, for Appellant.

Mack, Green, Brown & Heer, for Respondent.

By the Court, Talbot, C. J.:

This action was brought to recover damages in the sum of $20,000 for the breach of a contract to furnish a special train. From the verdict and judgment in favor of the plaintiff for $10,000, and from an order denying motion for a new trial, this appeal is taken by the company.

Defendant operates a railroad from Reno in this state to Doyle and Amedee in California. On the evening of January 21, 1911, the plaintiff was informed that his son, who had been caught in a storm and frozen, was suffering from blood poisoning, near Doyle, and it was necessary that he be removed speedily to Reno for medical treatment, and that death would likely result if such removal and treatment were delayed. Under the allegations and evidence of plaintiff it appears that the plaintiff contracted with the appellant, for the consideration of

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$125, which he paid in advance, for a special train to leave Reno at 6 o'clock the next morning and to take him to Doyle and return immediately to Reno with him and his son. According to the testimony of the plaintiff, at the time of the agreement for the special train, the plaintiff informed the appellant that he wished to bring his son to Reno for medical attention, of the location and serious illness of his son, and the necessity for his speedy removal to Reno for treatment, and the danger to the life of his son for delaying such removal. The train was not started at 6 o'clock, as agreed, but about twenty minutes later. Instead of being held in readiness and returning immediately with the plaintiff and his son to Reno, after its arrival at Doyle it was represented to plaintiff by defendant that it was necessary to run the train to Amedee, twenty miles farther, for the purpose of procuring fuel oil for the return trip. Plaintiff believed and relied upon this representation, and was not aware until later that it was not necessary to go to Amedee for fuel oil, and that none was taken on there. In going to Amedee and returning, the train was gone for about two hours. No oil was obtained at Amedee, and it was not necessary to procure any upon the whole trip. At Amedee the defendant took on the train a number of passengers for Reno and collected from them the usual fare. The train was further delayed upon the return to Doyle by attaching to it a freight car loaded with cattle. By reason of the trip to Amedee and the impeding of the train with the cattle car, it is claimed that the train was delayed for more than three hours in reaching Reno. It is alleged that the running of the train to Amedee, the misrepresentations as to the reasons therefor, and the taking on of the passengers and the car of cattle, and the delay consequent, were willful and malicious, and that by reason of such wanton, wrongful, and negligent acts the plaintiff was caused to suffer much anxiety and great mental pain and anguish. Damages were claimed by reason of the premises and of the wrongful, wanton, willful, and negligent acts of the defendant.

[1] The appellant contends that, as recovery is sought

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for the breach of an interstate contract and for damages for mental suffering, the case is one primarily and exclusively within the jurisdiction of the Interstate Commerce Commission to make proper findings and preparations before any action could be maintained, and that the district court was without jurisdiction. We are cited to Tex. & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, and other cases holding that a shipper cannot maintain an action at common law in the state court for excessive freight rates exacted on interstate shipments, where the rates charged were those duly fixed by the carrier according to the act and had not been found by the Interstate Commerce Commission to be unreasonable. If it be conceded that the Interstate Commerce Commission has exclusive original jurisdiction to determine the unreasonableness of interstate rates, it should be remembered that this is a different kind of a case and one to recover damages for the failure of the appellant to properly run a special train as agreed. If the amount of damages, or the reasonableness of rates, or whether charges are according to schedule, must first be determined by the Interstate Commerce Commission before suit on the various causes for damages, or torts, or breach of contracts of interstate carriers could be maintained, great would be the burdens of the commission, and long, troublesome, and expensive the delays which would result to litigants.

[2] There is an assignment that the court erred in its refusal to allow the defendant to amend the answer by setting up its failure to comply with the requirements of the interstate commerce act in the establishment of rates for special trains, or to plead the illegality of its contract by reason of its failure to comply with the law. The original complaint was filed on April 3, 1911, and after demurrer was sustained the amended complaint was filed on June 24, 1911, to which a demurrer was filed on July 3, which demurrer was argued and overruled on August 16. It did not specify the point covered by the proposed amendment. On November 3, 1911, appellant obtained an order further extending its time to answer until November 13.

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November 8 defendant filed a motion to strike out certain portions of the amended complaint, and this motion was heard and denied on the following day. On November 13, more than eight months after the filing of the complaint and more than six months after the filing of the amended complaint, defendant filed its amended answer, upon which the cause was heard.

Two days after the beginning of the trial on November 20, and after the jury had been impaneled, defendant objected to the taking of the testimony on the grounds that the complaint was insufficient because it did not show compliance by the defendant with the interstate act. The objection was overruled, and no effort was made to amend the answer until after evidence had been heard during that day and part of the ...

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