168 Wis. 617 | Wis. | 1919
Lead Opinion
The following opinions were filed December 3, 1918:
The rights and liabilities of the parties to this action are governed by the act of Congress of June 29, 1906, regulating interstate commerce. By sec. 20 of this act (Carmack Amendment, 34 U. S. Stats. at Large, 584, ch. 3591) Congress has fixed the liability of carriers respecting loss and damage of interstate shipments. This legislation has been repeatedly declared by the federal supreme court to supersede state regulation on the subject and to provide a uniform system of regulation and rules fixing the liability of interstate carriers and prescribing the effect of bills of lading. Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148; Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397.
In the Croninger and other cases the provisions of the Carmack amendment were held to impose on the initial carrier liability for loss and damage caused by any connecting carrier as well as for its own defaults, and that its contract of shipment is binding on all carriers for the entire transportation. Cleveland, C., C. & St. L. R. Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177; Georgia F. & A. R. Co. v. Blish M. Co. 241 U. S. 190, 36 Sup. Ct. 541.
Under the act every initial carrier is required “to issue a receipt or bill of lading” upon receipt of a shipment, which constitutes the contract between the shipper and all the carriers. Under the act the parties may agree upon a valuation of the property shipped for the purpose of charg
In the O’Connor Case the court declared:
“But so long as the tariff rate, based on value, remained operative, it was binding upon the shipper and carrier alike, and was to be enforced by the courts in fixing the rights and liabilities of the parties. The tariffs are filed with the commission and are open to inspection at every station. In view of the multitude of transactions, it is not necessary that there shall be an inquiry as to each article, or a distinct agreement as to the value of each shipment. If no value is stated, the tariff rate applicable to each state of facts applies. ... If sued for their loss it [the carrier] is liable only for the loss of what the shipper had declared them to be in class and value.”
The connecting carrier’s liability to a shipper was considered in Missouri, K. & T. R. Co. v. Ward, 244 U. S. 383, 37 Sup. Ct. 617, and it was there held:
“While the receiving carrier is thus responsible for the whole carriage, each connecting road may still be sued for damages occurring on its line; and the liability of such participating carrier is fixed by the applicable valid terms of the original bill of lading.” Bichlmeir v. M., St. P. & S. S. M. R. Co. 159 Wis. 404, 150 N. W. 508; 10 Corp. Jur. § 894, p. 541.
It is obvious that the shipment of this mare was an interstate shipment and that the provisions of the interstate commerce act apply. There is no dispute but that the ship
The defendant contends that there is no evidence in the case to support the finding of the jury that defendant was guilty of either gross or ordinary negligence. We have examined the evidence and find that the evidence tending to show the condition of the mare upon her arrival at Mani-towoc was sufficient to warrant an inference by the jury that she had not been properly cared for during shipment and that such condition was attributable to a lack of water and food combined. If the mare was in fact mistreated as alleged, then such mistreatment is partly attributable to the carrier who had charge of her before defendant received her as delivery carrier; but this fact cannot affect defendant’s responsibility to the shipper for the whole damage. Under such a state of facts the carriers are joint tort-feasors.
“Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it. . .. . It is not necessary that they be acting together or in concert if their concurring negligence occasions the injury.” 38 Cyc. 488, 489, and cases cited in the note; 10 Corp. Jur. § 894, p. 542; Baltimore & O. S. W. R. Co. v. J. A. Wood & Co. 130 Ky. 839, 850, 114 S. W. 734; Georgia F. & A. R. Co. v. Blish M. Co. 241 U. S. 190, 36 Sup. Ct. 541.
It follows that the plaintiff is entitled to recover his damage to the mare from this defendant as a joint wrongdoer, not to exceed,' however, $150 in amount, this being the valuation recognized by the published tariffs, rates, and
In Tradewell v. C. & N. W. R. Co. 150 Wis. 259, 136 N. W. 794, this court disregarded the published tariffs, schedules, and classifications as to alternative rates based on valuation of the articles shipped, and allowed recovery of the value of the shipment in excess of the value limited by the rate paid for the shipment. In so far as this case conflicts with the rule of the federal cases above cited, it must be deemed overruled.
By ihe Court. — The judgment appealed from is modified by limiting plaintiff’s right to recover damages to the sum of $150, and as so modified the judgment is affirmed. The appellant to recover costs and disbursements in this court.
Dissenting Opinion
(dissenting in part). I cannot agree with so much of the opinion as holds or intimates that Tradewell v. C. & N. W. R. Co. 150 Wis. 259, 136 N. W. 794, should be overruled. In that case it was established as a basis of the opinion that through mistake or inadvertence the value of the property was inserted in the bill of lading at about one tenth of its value. In other words, there was no agreement for a one-tenth valuation or any valuation less than the true value.
In my opinion the TradeweU Case is in harmony with the letter and spirit of the Carmack amendment to the Hepburn act and is not in conflict with the case at bar.
On February 4, 1919, the respondent moved for leave to open the default in moving for a rehearing and to make a motion for rehearing in the cause. The motion was argued by John B. Sanborn of Madison for the respondent and by R. N. Van Doren of Milwaukee for the appellant.
An order was entered allowing respondent’s attorney to file such motion for a rehearing, and it was further ordered that the record be retained in this court pending said motion.
The following opinion was filed April 2, 1919:
On February 4, 1919, the court entered an order opening the default and permitting the respondent to file a motion for rehearing. The appellant challenges the jurisdiction of the court to make such order.
When the motion for opening the default was brought to the attention of the court, and objection to the court’s jurisdiction was formally entered on the record, no discussion of the question was had nor was it considered by the court, and the application was granted without inquiry on the point suggested. If appellant’s contention is correct, then the court is without power and the order is ineffectual and a nullity. Sec. 3071, Stats., provides:
“ . . . The clerk of the supreme court shall remit to such court [from which appeal is taken] the papers transmitted to the supreme court on the appeal or writ of error, together with the judgment or decision of the supreme court thereon, within sixty days after the same shall have been made, unless the supreme court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such party to move for a rehearing.”
Rule 37 of this court provides that every motion for a rehearing must be filed within thirty days after the decision, and Rule 38 requires that when such a motion is filed the papers in any case shall be retained by the clerk until the motion is disposed of. The decision of this case in this, court was rendered December 3, 1918; the time for filing a motion for a rehearing expired January. 2, 1919; and the sixty days for the clerk to remit the papers in the case to the court from which the appeal was taken expired February 1, 1919. There was no order made within these sixty
On February 4, 1919, the day on which respondent moved the court to open the default and grant him leave to file a motion for a rehearing, such an order was made by the court. This was, however, three days after the sixty days had expired within which the clerk of this court was required by sec. 3071, Stats., to remit the papers in the case to the lower court. It was expressly held in Hocks v. Sprangers, 113 Wis. 123, 87 N. W. 1101, 89 N. W. 113; Murphy v. State, 131 Wis. 420, 111 N. W. 511; Ott v. Boring, 131 Wis. 472, 110 N. W. 824, 111 N. W. 833; and Pringle v. Dunn, 39 Wis. 435, that the jurisdiction of this court ceases at the end of the sixty days from the date of the decision of the case by virtue of the provisions of sec. 3071, Stats., even when the papers are not actually remitted, unless they are retained by the order of the court.
As stated in the Pringle Case:
“The statute itself regulates our jurisdiction; not the compliance or the noncompliance of the clerk with its provisions. The mere omission of the clerk to remit the record, the mere accident that the appeal papers remain here notwithstanding the statute, cannot operate to continue the jurisdiction of the court against the words of the statute.”
Since no order was obtained from this court within the sixty days from the decision of the case directing that the papers in the case be retained here for the purpose of opening the default for filing the motion for a rehearing by respondent, it necessarily follows that this court was without jurisdiction on February 4, 1919, when it directed that an order be entered that the default be opened, and hence such order is a nullity and the court now has no jurisdiction to entertain the respondent’s motion for rehearing in this court. If the decision and judgment in this court leaves respondent remediless to present his rights under the Cum-mins amendment of August 9, 1916, to the interstate com
“In the decision of causes before us, we must depend largely on the presentation of them by counsel. ... If we find points not raised at the bar, we pass upon them. But if, as a rule, we should decline all reliance on the investigations of counsel, and assume to wade through all the records coming before us for all possible points arising upon them, and so perform over again the duties of the bar, we should at once so far fail in our own duties as to delay justice, which would sometimes be equivalent to denial of justice. . . . And if parties claim to have suf*628 fered by mistake or neglect of counsel, and seek redress through the same or other counsel, they must do so with such diligence that they can overtake the jurisdiction of the court in the cause; so that they may be again heard without overriding the rules of law which go to the peace of society by the final end of litigation.”
Concededly the decision in this case was bottomed upon the grounds that the case was governed by the interstate commerce act before it was modified by the Cummins amendments of March 4, 1915, and August 9, 1916. If the fact is that the defendant under this act was required to obtain, by order of the interstate commerce commission, the right to adopt alternative rates based on declared values of the shipment, and that it has not done so, upon which point the record is silent, then the decision that the plaintiff is restricted in his recovery to the declared value of the shipment would be inapplicable to the actual facts of the case. But under the facts and circumstances above stated we are powerless to grant any relief to reopen the case for retrial to ascertain what the true state of facts on this point is.
The motion is therefore denied, without costs.
