The opinion of the court was delivered by: GANEY
This is a motion to dismiss the plaintiffs' cause of action by the defendant under the Interstate Commerce Act, as amended by the Act of May 16, 1942, 29 U.S.C.A. § 1001 et seq.
The defendant's motion to dismiss is grounded on the failure of the plaintiffs to state a claim against the defendant upon which relief could be granted by reason of the fact that it does not set forth in what manner, if any, it was agreed that the defendant was to act as freight forwarder for the plaintiffs.
Paragraph Three of the complaint alleges that: 'The defendant was, on the dates hereinafter mentioned, and, at all times since, a freight forwarded subject to the provisions of the Interstate Commerce Act and as such was the delivering transportation company of the shipment hereinafter referred to'. Reference is then made to delivery by the plaintiffs to the Alamo Freight Lines, Inc., at Laredo, Texas, of fifty seven (57) cartons of pigskin leather belts, in good condition, for transportation to the plaintiffs at Philadelphia, Pennsylvania. Further, it is alleged that the carrier failed to use reasonable care in transporting the said fifty seven (57) cartons of belts in that upon receipt at their ultimate destination the shipment was found to be in a generally wet and damages condition.
Part IV of the Interstate Commerce Act of May 16, 1942, provides as follows:
'Bills of lading and delivery of property:
'The provisions of section 20(11) and (12) of this title, together with such other provisions of chapter 1 of this title (including penalties) as may be necessary for the enforcement of such provisions, shall apply with respect to freight forwarders, in the case of service subject to this chapter, with like force and effect as in the case of those persons to which such provisions are specifically applicable, and the freight forwarder shall be deemed both the receiving and delivering transportation company for the purposes of such section 20(11) and (12)'. 49 U.S.C.A. § 1013.
Section 20(11), 49 U.S.C.A., provides:
'Any common carrier, railroad, or transportation company delivering said property so received and transported shall be liable to the lawful holder of said receipt or bill of lading * * * for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * * * '.
However, considering under a motion to dismiss that the allegations of the complaint must be accepted as true, it cannot be here stated that a sufficient cause of action is not well set forth in the complaint since paragraph three while not alleging with precision and detail that the defendant was to act as freight forwarded for the plaintiffs is, as has been indicated, sufficient to apprise the defendant of the nature of the plaintiffs' cause of action and requires answer thereto.
Accordingly, the motion to dismiss is denied.
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