(dissenting) : But for national legislation this action could be maintained. Such legislation has declared that all questions involving the propriety of an interstate rate must be presented to a federal tribunal. But has it in terms or by intendment prohibited the recovery of damages for loss on a shipment caused by a negligent misquotation of the tariff rate? True, it happens in this case that the damages asked *83equal the difference between the quoted and the tariff' rates; but it is not sought, either in terms or in fact, to recover such damages as a difference, but to recover for a loss on the wheat shipped, caused by the careless, misquotation of the rate. Had the prayer of the petition been broader and the evidence sufficient the allegations would support a verdict for punitive damages in an ordinary common-law action.
Recovery was not sought upon any contract or for the breach of any contract, for it is conceded that the law forbade a contract of shipment at the quoted ratqf There was no payment of the tariff rate under pretest, no attempt to clear the shipment of the carrier’s lien, no complaint as to the legality or propriety of the tariff rate, which was paid.
Does the Mugg case control ? That action was begun in a justice’s court, where one is not held to orthodox strictness in pleading, but it sought to recover damages caused by reason of a misquotation and by being forced to pay and paying the full rate under protest in. order to obtain and deliver the coal. The bill alleged:
“That plaintiffs’ loss and damage in the sum aforesaid were occasioned by defendant’s negligence in making and quoting to plaintiffs the said, rates, on which rate quoted defendant knew plaintiffs relied and based their sales of the said three cars of coal shipped and sold thereafter, and_ then forcing plaintiffs to pay a greater rate, amounting in the aggregate to the sum of $140.18 o11 said three cars of coal, thereby causing nlaintiil'Y loss and damage in the said sum.” (Texas & Pacific Railway v. Mugg, 202 U. S. 242, 243.)
The Mugg case was not argued in the supreme court for the plaintiffs, and the decision merely and only adopts and applies that in the Hefley case (158 U. S. 98), 'and holds that it (the Mugg case) is ruled thereby. The 'Hefley case, by the Mugg decision, is expressly given this effect, and this only, so far as applicable here h
“Tihe clear effect of the decision, was to declare that *84one who has obtained from a common carrier transportation of goods from one state to another at a rate, specified in the bill of lading, less than the published schedule rates filed with and approved by the interstate commerce commission, and in force at the time, whether or not he knew that the rate obtained was less than the schedule rate, is not entitled to recover the goods, or damages for their detention, upon the tender of payment of the amount of charges named in the bill of lading, or of any sum less than the schedule charges; in other words, that whatever may be the rate agreed upon, the carrier’s lien on the goods is, by force of the act of congress, for the amount fixed by the published schedule of rates and charges, and this lien can be discharged, and the consignee can become entitled to the goods, only by the payment or tender of payment of such amount. (202 U. S. 245.)
The object of the legislation in question is to prevent favoritism and discrimination, and to bind shipper and carrier alike by the schedule rate, but it is not apparent that its further object is to bar action for damages caused by negligent misquotation. It is suggested that to permit recovery would in effect give the shipper transportation at less Khan the tariff rate. Logically this may be true, in a sense, but it is not legally true, for he has already paid th^ full rate and makes no complaint whatever concerning it. He is not seeking to recover money wrongfully extorted, but, having obeyed the law by paying the legal rate without protest, he now seeks to recoup his k>ss on the wheat which the negligent misquotation caused. He was careful and inquired the rate, stating that it-, would be his selling basis. Had it been correctly given He would not have lost; and because of this loss, caused hy this carelessness, he sues. It is no previously planned scheme to circumvent the national law, b\qt a bona fide attempt to make good for an actual loss ¡‘suffered while obeying that very law. He is not complaining that he paid or had to pay the full rate., or seeking to recover any portion of it, but he is com*85plaining that his proper obedience to the law still left him damaged by the carrier’s negligence.
Congress evidently intended that both shipper and carrier should know the rate, and the latter is required to keep it posted so the shipper may know it. Not having done so, it was proper for the shipper to apply to the proper source for information, and under the circumstances it seems but common sense and common fairness to say that he had a right to rely thereon, provided such relying in. no way involved an infraction of the law, and no decision thus far found makes it clear that, having complied with the federal statutes, he is restricted to a complaint under or concerning them in a national tribunal. His recovery can not be construed into a judicial invitation to bring similar actions, for we must presume that only in rare instances will such circumstances arise; but, if they should, that is no reason why redress should be denied.
Finally, it is urged that section 9 of the act of February 4, 1887 (24 U. S. Stat! at L. p. 382, 3 Fed. Stat. Ann. p. 833) withholds jurisdiction from state courts. This section provides that one claiming to be damaged by any common carrier may either make complaint to the interstate commerce commission or sue in any district or circuit court of the United States of competent jurisdiction, but he may not do both. But the preceding section provides that for any act done or omitted in violation of the statute in question the party damaged may recover the full amount of damages sustained, together with a reasonable counsel or attorney’s fee, and the two sections together show that it is for such damages only that one must, resort to the federal tribunals. Nothing in the entire act makes the negligent but unintentional misquotation of a rate unlawful.
Finding nothing in the statutes or in the decisions prohibiting the maintenance of this action, I believe the judgment should be affirmed.