174 Mo. App. 184 | Mo. Ct. App. | 1913
This is a suit for damages accrued through the alleged breach of a contract pertaining to an interstate shipment of freight. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is a manufacturer of silver plated ware in St. Louis and defendant is a common carrier engaged in interstate traffic. The shipment involved three boxes of silver plated ware from St. Louis, Missouri, to Peoria, Illinois, two of which boxes were lost in transit, and for the alleged value of these — that is $4764.04 — the suit is prosecuted. There is no suggestion in the case that the loss occurred through negligence. Indeed, it is not revealed how nor where the goods were lost, but it does appear they were lost in transit through some means while in the possession of the carrier and therefore never delivered.
The suit proceeds as in assumpsit for the alleged value of the goods lost — that is $4764.04 — invoking the obligation of an insurer, which, it is said, inheres in the transaction because of its nature and that of defendant’s calling. Defendant had fully complied with the requirements of the Interstate Commerce Act and filed with the Interstate Commerce Commission its tariff sheets including rates, schedules and classifications pertaining to such shipments of interstate freight, and such rates, schedules find classifications had been duly approved by the commission and were posted, in accordance with the provision of law, in defendant’s freight depot in St. Louis at the time the contract of affreightment was made. By these schedules and classifications so on file and promulgated, defendant had established two rates of freight with respect to such shipment between St. Louis and Peoria, Illinois, which,
It appears plaintiff, by its manager, delivered the consignment of plated ware to defendant at its freight office in St. Louis, and, indicating his .purpose to' ship it to Peoria, Illinois, requested a bill of lading therefor. Upon defendant’s agent inquiring the character of the goods and their value, plaintiff’s manager replied that the consignment consisted of plated silverware and its value was “close to $5000.” Thereupon defendant’s agent issued to plaintiff the shipping contract in suit here, which is an ordinary bill of lading, describing the shipment as three boxes of plated ware, but without fixing any value thereon whatever. Defendant’s agent exacted a freight charge for the through shipment of $4.17, which plaintiff paid at the time. Such is the lesser tariff rate fixed for such shipments under the limitations on the carrier’s lia
“The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of ivhich events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.”
There was no “lower value” “represented in writing by the shipper” and there was none expressly agreed upon between plaintiff’s manager and defendant’s agent, when the contract evidenced by the bill of lading was entered into. Therefore, the only relevant provision of the condition of the shipping contract above copied touching the value is that-which
Defendant set forth in its answer the fact that it had complied with the Interstate Commerce Act and had on file at the time of the contract of the shipment its tariff sheets, inelnding rates, schedules and classifications, and that the same were duly posted in its freight offices in St. Louis, revealing the two rates together with the conditions annexed thereto as herein-above stated,'and insisted that, by entering into a contract of shipment under the lesser of the two rates, plaintiff agreed that the amount of the recovery, in case of loss of the goods, should be ten times the amount of the freight charge, that is, $41.70, which it offered to pay. The court treated these facts as unavailing in defense of the suit, and, over the objection and exception of defendant, permitted plaintiff to prove the full value of the silver plated ware lost in transit, and found such value to be $2328.65. Judgment was accordingly given for plaintiff for this amount.
The principal question for consideration relates to the matter of incorporating in the shipping contract the provisions of defendant’s tariff pertaining to the rate and the limitations annexed thereto under its schedules and classifications. It is insisted by plaintiff that the valuation of ten times' the freight paid stipulated in the tariff sheets is not to be regarded as parcel of the contract of shipment, for the reason that such would operate a limitation upon the liability of the carrier at common law, of which no part is to be forgiven in any case except on the express assent of the shipper, and that the contract of affreightment contains no express provision touching the matter, as in the case of an agreed valuation. It is argued, furthermore, that here plaintiff declared the value of his goods at the time the shipment was made to be “close to $5000” and notwithstanding defendant, on receiv
Much is said in the briefs concerning the rule of decision which prevails in Missouri as to limitations upon the carrier’s common law liability, but all of this is to no avail in the instant case, for the reason the shipment is interstate in character and falls within the purview of the act of Congress touching interstate commerce. Congress, having manifested its purpose through the enactment- of the Interstate Commerce Act to take possession of the subject of the liability of carriers by railroad on account of interstate shipments, as appears by reference to the Interstate Commerce Act and its amendments, including that of June 29, 1906 (34 United States Stat. at Large, 584), and especially bills of lading and shipping contracts through what is known as the Carmack Amendment, incorporated in section 20 of that Act, page 595, such legislation and the decisions of the Supreme Court of the United States expounding it supersede all State regulations and rules of decision on the subject. The Federal statutes touching this matter and the decisions of the Supreme Court of the United States construing them afford an exclusive rule for the determination of controversies pertaining to the subject. This is true, too, notwithstanding the provision of the Carmack Amendment, to the effect that the enactment shall not deprive any holder of a bill of lading of any remedy or right of action that he had under the existing law, for this is construed to refer alone to existing Federal law. [See Adams Express Co. v. Croninger, 226 U. S. 491; Chicago, Burlington & Quincy R. Co. v. Miller, 226 U. S. 513; Chicago, St. Paul, etc., Ry. Co. v. Latta, 226 U. S. 519.] When we come to examine the rule of decision being evolved in the Federal Supreme Court with respect to interstate shipments, it is ascertained that the tendency is to determine the right re
But it is argued this doctrine proceeds under the Interstate Commerce Law on the theory that the shipper has declared the value of his goods at a small amount and obtained the lower rate on a representation to that effect, in which event it is just to preclude his right to recover more on the theory of an estoppel, for he thus voluntarily availed himself of the benefits which lie in the lower rate and thereby diminished the earnings of the carrier through representing his goods of the lesser value. It is argued that, however just the doctrine may be in a proper case, it should not obtain here for the reason plaintiff declared the value of his goods at the time the shipment was made to be “close to.$5000” and made no request with respect to the rate. The rate, it seems, was selected by defend-ant’s agent without inquiry on the part of plaintiff and the freight charge fixed at $4.17 in accordance with the tariffs with limitation of the carrier’s liability, and it is clear no misrepresentation as to value was made by plaintiff to obtain it. But obviously this fact is not available here, for the suit proceeds on the contract as in assumpsit for its breach and not on the liability of the carrier annexed by law. There is no suggestion in the case that plaintiff was deceived or misled by de
The suit must, therefore, be regarded as proceeding upon and in affirmance of every provision of the contract revealed by the bill of lading on which the petition declares, after putting aside, as entirely without influence on the controversy, the fact that plaintiff represented the true value of the goods at the time. In this view, it is entirely clear that plaintiff is entitled to recover not exceeding $41.70' under the contract, for such is ten times the amount of the rate of freight paid on the entire shipment. Indeed, it may
Here, it is true, a lower value was not represented in writing by the shipper nor was a lower value expressly agreed upon, as is usual in the case of agreed valuations in the contract. But though such be true, the stipulation refers the matter of the value recoverable in event of loss to be determined by the classifications or tariffs upon which the rate is based. The rate of $4.17 was based upon the tariffs and classifications, which provide a limitation upon the liability of the carrier for loss of the goods to ten times the amount of the freight paid. Such is the contract declared upon and the provision appears to be in accord with the trend of decision in the Supreme Court of the United States in similar cases involving interstate shipments. Indeed, it seems that this provision of the contract is precisely in accord with the doctrine of that court, for it adheres throughout to the principle of estoppel, and declares a liability on the part of the carrier to respond for loss in proportion to the charge for the carriage paid; on the theory that a shipper may not obtain the benefit of the lower interstate rate
It is true the cases over which we have pondered reveal contracts of affreightment containing express provisions imposing the limitations upon the carrier’s liability more explicit than the one in judgment here, but all of them refer to the rates and classifications, which, it is said, are fixed as a matter of law on filing with and approval by the Interstate Commerce Commission. The court proceeds on the theory that the shipper’s knowledge of the lawful rate is conclusively presumed and he will not be heard to say he did not know it. Indeed, the rates, when duly filed and approved, are fixed by law and therefore not a subject of contract between the parties. [Texas & Pacific R. Co. v. Mugg, 202 U. S. 242; Drey & Kahn Glass Co. v. Mo. Pac. R. Co., 156 Mo. App. 178, 136 S. W. 757.] The broad purpose of the Interstate Commerce Act is to assure equality to one and all in the matter of interstate shipments and to prevent all manner of discriminations, either directly or indirectly, in favor of any shipper. Because of this the rates are fixed under the authority of the law and may not be varied to suit the exigencies of any particular case. From this premise, the Supreme Court of the United States, in expounding the statutes, rules, too, that the rates so established inhere with certain obligations and limitations on obligations which must be protected inviolate to one and all alike. This, it is said, is in order to effectuate the broad purpose of the enactment that no discriminations may be had, either directly or indirectly. Then, too, the rates are considered by that court and the Interstate Commerce Commission, in a measure,- as premiums for insurance,' and it is said it is proper to adjust them with the view to the obligation of the common carrier as an insurer so that fair remuneration may be had in collecting the rate in proportion to the value to be compensated in event the
Besides the cases of Kansas City Southern R. Co. v. Carl, 227 U. S. 639; 33 Sup. Ct. Rep. 391; M., K. & T. R. Co. v. Harriman Bros., 227 U. S. 657; 33 Sup. Ct. Rep. 397; Adams Express Co. v. Croninger, 226 U. S. 491, portraying this view, see, also, for the view of the commission, In The Matter of Released Rates, 13 Interstate Commerce Reports, 550. In this view, contracts of affreightment, which purport to stipulate a special privilege to the shipper not open to one and all alike in the schedules and classifications filed, are declared of no effect and unavailable. Such is the case of Chicago & Alton R. Co. v. Kirby, 225 U. S. 155. There Kirby, the shipper, paid the full tariff rate, and, according to his contract, was.to receive expedited service, in that 'his shipment of horses from Springfield, Illinois, destined for New York, were to be carried so as to make connection with a certain train for quick passage at Joliet, Illinois. The connection was not made and the shipper sued as here for a breach of the contract. The Supreme Court denied the right to relief on the grounds that, though the full tariff rate was paid and the contract between the parties contemplated an expedited service, no sucJti service was stipulated in the rate on file with the commission and therefore available to one and all alike. To sustain the suit would operate a discrimination. The principle obtains here, too, for if plaintiff .may have full compensation for the value of its goods on paying the rate of $4.17, then the result would operate a discrimination in favor of it in that no such recompense is available to other persons at the same rate by the tariff and classifications on file.
The most recent case with which we are familiar is that of Kansas City Southern R. Co. v. Carl, Advance Sheets, 227 U. S. 639; 33 Sup. Ct. Rep. 391. A few excerpts from that opinion will illustrate the
From these expressions and the principle reflected throughout the authorities referred to, it is obvious that when the shipper contracts for an interstate transportation of his goods and avails himself of the lower rate, with apt reference in the contract to such rates and schedules on file with the commission and the values annexed, as in this case, his compensation, in the event of loss, is to be measured by the valuation • of the goods on which the rate is established, for the rate and the valuation are indissoluble. No one can doubt that this doctrine of the cases referred to, in its broad significance impinges upon the old-fashioned way of entering into an actual contract as by the full and free assent of the parties, and works out a resulting contract otherwise made by the operation of law and the application of the principle of estoppel. But, be this as it may, the Supreme Court has but recently
It is true the measure of compensation annexed to the rate of $4.17 for the shipment is meager and, no doubt, will entail especial hardship in the instant case, but be that as it may, the question of the reasonableness or unreasonableness of the rates and the conditions attached to them is not a juridical one for the courts to determine in the first instance, but rather is committed primarily alone to the Interstate Commerce Commission, and it is therefore our duty to treat with the rate and conditions annexed as reasonable and just in all respects whatever may be the view of the court on the subject. [Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440, 441.]
Plaintiff insists that the judgment given in Drey & Kahn Glass Co. v. Mo. Pac. R. Co., 156 Mo. App. 178, 136 S. W. 757, is precisely in point here and sustains the proposition that full common law liability of the common carrier is annexed to every contract of shipment transported by a common carrier unless the shipper expressly assents to a limitation thereon. There can be no doubt that that case declares such to be the doctrine of the law, and it is supported by ample authority. Indeed, such has been the universal rule of decision, as we understand it. That case involved an interstate shipment, as here, but no contract pertaining to it was entered into betweén the shipper and
“As a general rule and in the absence of fraud or imposition, the common carrier is answerable for the loss of a package of goods though he is ignorant of its contents and though its contents are ever so valuable, if he does not make a special acceptance.” (The italics are ours.)
This doctrine, that the liability of the carrier attends every shipment unless expressly limited by the assent of the shipper, has ever obtained in this country as will appear by reference to the following authorities in point: New Jersey Steam Navigation Co. v. Merchants’ Bank, 47 U. S. (6 How.) 344, 382, 383; Railroad Co. v. Mfg. Co., 83 U. S. 318, 328, 329; 3 Ency. of U. S. Sup. Ct. Rep. 606, 607. Though the Hart and other cases cited were decided prior to the passage of the Interstate Commerce Statute, it appears the Supreme Court of the United States has rec
However all of this may be, the suit in the instant case is on the contract, and the contract declared upon, by express and appropriate words, refers to the tariff sheets and classifications on file for the valuation recoverable and as the one on which the rate of freight is based. It is clear that this express reference incorporates such valuations into the contract of shipment and the recovery is to be limited accordingly. It is clear, too, that no such question was in judgment in the Drey & Kahn Glass Company case for the very good reason that no actual contract of any kind was in suit there. At most, it was an implied one, but sufficient to invoke the obligations of a common carrier in favor of the shipper whose goods it took for transportation.
