Saks, Herbert E.

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Constitutional Law -- Effect of Transportation Act -- Limitation of Actions

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University of Miami Law Review Volume 9 Number 2 Miami Law Quarterly Article 11 1-1-1955 Constitutional Law -- Effect of Transportation Act -- Limitation of Actions Herbert E. Saks Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Herbert E. Saks, Constitutional Law -- Effect of Transportation Act -- Limitation of Actions, 9 U. Miami L. Rev. 226 (1955) Available at: https://repository.law.miami.edu/umlr/vol9/iss2/11 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. MIAMI LAW QUARTERLYor disbarment.20  A belligerent and headstrong attitude on the partof an attorney has been held insufficient to warrant action.21  In thecase of In Re Huppe,22 the attorney referred to the judge as "an arrogantjackass" in a letter to a state representative. The court held that thisdid not warrant disbarment, absent evidence that the attorney intendedthe letter to be circulated. Likewise,23 a proper retraction or apologywill be considered in mitigating the offense, 24 and in the majority ofcases will dismiss the actionA2'  In a Nebraska case 26 the court stated,.. .we were painfully disappointed that no apology was made."In the principal case the letter was written for the purpose ofadvising the defendant's client in regard to the taking of an appeal.There was no intent to bring disgrace to the court.27  The letter waswritten in the heat of disappointment at the outcome of the client'strial.28  Since the defendant promptly apologized to the judge, 29 thecourt rightly recognized these facts as not warranting disbarment.It is submitted that the result achieved in this case is just andequitable. The power to disbar is not an arbitrary one to be exercisedat the whim of the court,30 but should be used only in a clear casefor the most wcighty reasons.31  An attorney may feel at various timesthat the court is biased. He may feel that the court has certainidiosyncrasies which should be taken into account in the proceeding ofhis case. The attorney should be free to discuss these factors with hisclient without fear of exposing himself to punishment.Irwin G. Christie.CONSTITUTIONAL LAW-EFFECT OFTRANSPORTATION ACT-LIMITATION OF ACTIONSAlleging negligent damage to an interstate shipment of goods, shippersued carrier in a state court within the two year period prescribed by theuniform express receipts which were in strict conformance with the20. in re Rockmore, 127 App. Div. 499, 111 N.Y.S. 879 (1908); Matter of Man-heim, 113 App. Div. 136, 99 N.Y.S. 87 (1906).21, People v. A'Brunswick, 315 I11, 442, 146 N.E. 483 (1925).22. 92 Mont. 211, 11 P.2d 793 (1932).23. See note 19, supra.24. In re Snow, 27 Utah 278, 75 Pac. 741 (1904); In re Robemson, 48 Wash. 153,92 Pac.929 (1907).25. In Matter of Carrao, 170 App. Div. 545, 156 N.Y.S. 379 (1915).26. In re Dunn, 85 Neb. 606, 124 N.W. 120, 130 (1909).27. See note 15, supra.28. See note 20, supra.29. See note 24, suora.30. People v. McCallum, 341 Ili. 579, 173 N.E. 827 (1930); In re Lemisch, 321Pa. 110, 184 At]. 72 (1936).31. State v. Ledbetter, 127 Okla. 85, 260 Pae. 454 (1927).CASENOTESTransportation Act.' Plaintiff's action was dismissed for want of season-able prosecution; her petition for reinstatement was granted. On appeal,the Supreme Court of Florida reversed2 the lower court for error inreinstating the case without good cause. The plaintiff brought a newaction-after the expiration of the two year limitation-under a savingstatute.3 Held, reversed.4 This new action was iiot barred by the twoyear limitation since the federal act has not superseded the state statute.Hoagland v. Railway Express Agency Inc., 75 So.2d 822 (Fla. 1954).In the final analysis, the ascertainment of the validity of a statestatute affecting interstate commerce involves a balancing of national asopposed to local interests.5  Notwithstanding, a general set of rules hasbeen developed by which the challenged state action may be scrutinized.Pursuant to the formula evolved, where the subject matter is one ofnational concern, requiring uniformity of regulation, the enactment of astatute by Congress shall be exclusive, superseding state law on thematter.0 On the other hand, where the subject is one of local concern,adapted to diversity of treatment, the power of the states is said to beconcurrent with that of Congress; state regulation being permissableunless it conflicts with federal laws governing the subject.7  However, evenin the absence of conflict, should the state statute be found to haveentered a field which Congress intended to preempt through some affirma-tive act of legislation, the state rule will be rendered ineffective.8  Indetermining whether a federal act has superseded a state law, its entirescheme must be considered, and that which is implied within statutory1. 41 STAr. 491 (1920), 49 U.S.C. §20(11) (1946) "Any common carrier, rail-road, or transportation company . . . receiving property from a point in one state ...to a point in another state . . . shall issue a receipt or bill of lading therefore, andshall be liable to the lawful holder thereof for any loss, damage, or injury to such property.. Provided further, That it shall be unlawful for any such receiving or deliveringcommon carrier to provide by rule, contract, regulation, or otherwise a shorter periodfor the filing of claims than nine months, and for the institution of suits than twoyears . , . from the day when notice in writing is given by the carrier to the claimantthat the carrier has disallowed the claim . "2. Railway Express Agency, Inc. v. Hoagland, 62 So.2d 756 (Fla. 1952).3. FLA. STAT. § 95.06 (1953) "If an action shall be commenced within the timeprescribed therefore, and a judgment therein for the plaintiff be reversed on appeal or writof error, the plaintiff . . . may commence a new action within one year after thereversal."4. Three justices dissenting: Mathews, Sebring and Thomas.5. See Frankfurter, Taney and the Commerce Clause, 49 HARv. L. Rev. 1286 (1936).6. Cooley v. Board of Wardens, 12 low. 299, 319 (U.S. 1851) "Whatever sub-jects .. . are in their nature national, or admit only of one uniform system, or planof regulation, may justly be said to be of such a nature as to require exclusive legislationby Congress."7. Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245 (U.S. 1829) (state'sauthorization of the construction of a darn over a navigable creek held valid); MinnesotaRate Cases, 230 U.S. 352 (1913) (fixing of reasonable rates for intrastate commerce waswithin power of state); California v. Thompson, 313 U.S. 109 (1941) (state statuterequiring transportation agents to obtain license assuring their fitness was held valid).8. Oregon - Washington R.R. & Nay. Co. v. Washington 270 U.S. 87 (1926),74 U. OF PA. L. REv. 852 (1926) (state quarantine of diseased plants held invalid).MIAMI LAW QUARTERLYscope and intent has no less effect than that which is expressed., Butthe intent to supersede is not to be inferred unless the act of Congress,fairly interpreted, is in actual conflict with the law of the state, orshows a purpose to take possession of the whole field.' 0The instant case turns on the question of whether the effect ofF.S. 95.0611 interferes with the operation and policy of Title 49 U.S.C.§ 20(11) 12 so as to require an inference that the federal act has supersededthe state statute. In holding that there is no inconsistency betweenthe two statutes, the court grounds its decision on a number of cases,13the more significant of which are hereinafter discussed. In the caseof Louisiana & Western R.R. v. Gardiner,14 the bill of lading requiredthat suit be brought within a period that was unlawful under the federalact. The Supreme Court of the United States held that the statelimitation period governed, notwithstanding that it was shorter thanthe minimum time provided in § 20(11). The court held that§ 20(11) was not intended to operate as a statute of limitations, butmerely as a restriction on the freedom of carriers to fix periods withinwhich suit rhay be brought. It is submitted, however, that this case isinapplicable from a factual standpoint, because the bill of lading wasnot in compliance with the federal act, whereas in the principle case,the bill of lading is in complete accord with § 20(11). Consequently itis not necessary to treat the act as authorizing a federal statute oflimitations, but merely as a congressional expression of a reasonabletime in which to sue; the time was compiled with in the instant case.Another case relied on by the majority of the court is that of Missouri,K. & T. Ry. of Texas v. Harris,15 in which it was held that a state statuteallowing recovery of a moderate attorney's fee as a part of costs isnot inconsistent with the commerce act, since it only incidentally affectsthe remedy for enforcing the carrier's responsibility. However, it seems9. Savage v. Jones, 225 U.S. 501 (1912); Levy, Aronson & White v. Jones, 208Ala. 140, 93 So. 733 (1922); State v. Atlantic Coastline R.R., 77 Fla. 366, 81 So.498 (1919).10. Savage v. Jones, supra note 9, Gilway v. Cuyahoga Valley Ry., 292 U.S. 57(1934); State v. Atlantic Coast Line R.A., supra note 9; Western Union Telegraph Co. v.Bailey, 108 Tex. 427, 196 S.W. 516 (1917).11. See note 3 supra.12. See note 1 supra.13. Leigh Ellis & Co. v. Davis, 260 U.S. 682 (1923) (shipper brought suit infederal district court for Georgia to recover upon two bills of lading. Supreme Court ofUnited States would not apply remedial statute of Georgia to alter the contractual timelimitation). A majority of the court, in the principal case, argues that the federal courtfollowed the laws of the state, since Georgia would not have applied the remedial statuteeither. A contra interpretation, that thq holding is bottomed on federal rather thanstate law, is possible. Leithauser v. Hartford, Ins. Co., 124 F. 2d 117 (6th Cir. 1949),cert. denied, 316 U.S. 663 (1942) (insured's action was not barred by policy limitationwhere state statute allowed one year after reversal). It is submitted that Congress hasnot seen fit to legislate on the subiect of contract periods of limitation in insurance policies.14, 273 U.S. 280 (1927).15. 234 U.S. 412 (1914).CASENOTESthat this case is also distinguishable on the facts, since, as expressed bythe court: "The local statute . . . deals only with a question of costs,respecting which Congress has not spoken"'' (emphasis supplied), whereasthe instant case involves a contractual period of limitations which hasbeen prescribed by the federal legislation on the subject.Dissenting judge Mathews sets forth the opposing theory that thefederal statute has preempted the field in cases involving express receiptswhich comply with the act. fie argues that a contrary state statute mustyield to the federal statute whether the conflict is between a contract incompliance with the act and a longer state period,1 7 or one in compliancewith the act and a shorter state period.' 8It is this writer's conclusion that the majority holding in this casetoo liberally interprets the Transportation Act. It would seem that therequirement of uniformity, which was a guiding star in this legislation,demands that one period of limitation be fixed.' The writer is of theopinion that the result of the instant case deprives the federal restrictionof much of its practical effect.It is submitted that an affirmative federal statute of limitations wouldbe desirable.Herbert E. SaksI NJUNCTIONS--NUISANCE-CEMETERIESThe appellant home-owners sought to enjoin the operation of acemetery adjacent to their homes. The facts failed to show injury orprobable injury to health and the injunction was refused. Held, inreversing the lower court, a cemetery in a residential section constitutesa nuisance. Jones v. Trawick, 75 So.2d 784 (Fla. 1954).It is well settled that a cemetery is not a nuisance per se. A cemetery16. Id. at 422.17. Cf. Schiebel v. Agwilines, 156 F.2d 636 (2d Cir. 1946) (similar statutoryprovision applicable to ocean carriers). As said by this court on p. 638: "183bis a declaration of Congressional policy as to lawful contractual time limitation and onewhich in the interest of uniformity should be construed to exclude state statutes oflimitations."18. Atlantic Coast Line R.R. v. Chase, 109 Fla. 50, 146 So. 658 (1933) (caseinvolved bill of lading identical with that in case at bar). The court held: "Such con-tractual limitation . . . is valid and enforceable according to the intent ofi the federallaw. The federal law on the subject has superseded all state statutes to the contrary inso far as interstate shipments of goods are concerned." cf. Atlantic Coast Line R.R. v.Wauchula Truck Growers' Ass'n. 95 Fla. 392, 118 So. 52 (1928).19. Cf. Phillips Co. v. Grand Trunk Western R.R., 236 U.S. 662, 667 (1915);Kansas City S.Ry. v. Wolf, 261 U.S. 133, 139 (1923).1. Byran v. Birmingham, 154 Ala. 447, 45 So. 922 (1908); McDaniel v. ForrestPark Cemetery Co., 156 Ark. 571, 246 S.W. 874 (1923); Los Angeles County v. Holly-wood Cemeteries Ass'n, 124 Cal. 344, 57 Pac. 153 (1899); Harper v. Nashville, 136Ga. 141, 70 S.E. 1102 (1911); Rosehill Cemetery Co. v. Chicago, 352 i1l. 11, 185N.E. 170; Villa Park v. \Vanderer's Rest Cemetery Co., 316 Ill. 226, 147 N.E. 104(1925); Begein v. Anderson, 28 Ind. 79 (1867); Payne v. Wayland, 131 Iowa 659,

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Constitutional Law -- Effect of Transportation Act -- Limitation of Actions

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