Engemoen v. Chicago, St. P., M. & O. Ry. Co.

HOOK, Circuit Judge. This was an action for damages for breach of an alleged contract to transport for plaintiff, in 24 hours, two lots of cattle from South St. Paul, Minn., to Chicago, Ill. The transportation was at regular tariff rates; the complaint was on account of the excess of time taken. A trial to a jury resulted in a verdict for the plaintiff. Afterwards, on motion of the defendant, the court rendered judgment in its favor, notwithstanding the verdict. [1, 2] If the contract for transportation within the limited time was not authorized or provided for by the defendant’s published tariffs it was void. Chicago & Alton R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033. But the invalidity did not appear on the face of the pleadings, and did not arise from mere legal presumption. It was a matter of defense, and rested in proofs submitted to the jury. Though, notwithstanding the verdict, the court thought the defense 897 was made out, it could not be said as of law that the proofs at a second trial would be the same. Under such circumstances a new trial should have been granted, not a judgment for defendant contrary to the verdict. Slocum v. Insurance Co., 228 U. S. 364, 33 Sup. Ct. 523, 57 L. Ed. 879. A judgment for plaintiff on a third count for an overcharge was rendered by agreement, and is not in controversy here. The judgment on the first and second counts is reversed and the cause is remanded for a new trial as to them.