Bowman-Kranz Lumber Co. v. Bush

104 Neb. 165 | Neb. | 1920

Dean, J.

Plaintiff recovered a judgment for $162.94 for the conversion of a car of coal purchased at Paris, Arkansas, and consigned to Omaha, Nebraska, where upon arrival, the shipment was inadvertently delivered by defendant to a company other than the consignee. The district court held that the value at destination should determine the measure of damages and judgment was rendered accordingly. The defendant appealed.

The case is submitted on an agreed statement of facts. The sole question to be determined is whether the value at the place of shipment or at the place of destination ,should govern in. compntation of damages. We conclude that under the facts here presented and the authorities the former should govern.

Defendant relies upon the uniform bill of lading to sustain its contention, which among other provisions, contains this: “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 which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence. ’ ’

Plaintiff argues that the provision in question is an attempt to ljmit the liability of the carrier for negligence, and that it is therefore void under the Cummins amendment to the interstate commerce act. 8 TJ. S. Comp. St. 1916, sec. 8604a. The recent decisions seem to hold otherwise. This provision has been construed and held by the interestate commerce commission and by the federal and state courts to be a reasonable rule by which to determine the value of a shipment in case of loss, and that it is not a limitation of the carrier’s liability for negligence. Shaffer & Co. v. Chicago, R. I. & P. R. Co., 21 I. C. C. 8; Springfield Light, Heat & Power Co. v. Norfolk & W. R. Co., 260 Fed. 254; Wallingford v. Atchison, T. & S. F. R. Co., 101 Kan. 544, L. R. A. 1918B, 716. Under the Cummins amendment it has been upheld. In re Cummins Amendment, 33 I. C. C. 682, at p. 693. Some of the authorities point out that the rule is salutary, in that the invoice value of the shipment, with freight added where it has been prepaid, can be readily ascertained,, and that prompt settlement can be made by the parties without resort to tedious and expensive litigation.

At the trial it was agreed that the valué at the point of shipment was $90.90, which with accrued interest to the date of filing the answer was $95.41, when defendant offered to confess judgment for that amount. The judgment is therefore affirmed, upon condition that plaintiff within ten days remit all in excess of $90.90, with interest at 7 per cent, from date of shipment to date of offer to confess judgment. The costs in district court and in this court subsequent to the offer to confess judgment are to be paid by plaintiff.

Affirmed on condition.