64 Wash. 256 | Wash. | 1911
The respondent brought this action to recover the value of certain sheep and hogs, lost through the alleged negligence of the defendant. The alleged value of the sheep and hogs lost was $821.05. The case was tried to the court and a jury. A verdict was returned in favor of the plaintiff for the sum of $113.20. Judgment was entered upon the verdict. The defendant appeals.
There is no substantial dispute upon the facts in the case. It appears that, on December 16, 1909, the plaintiff shipped a car load of hogs and a car load of sheep from Stockdale, Oregon, to Tacoma, Washington. The two car loads were delivered at Stockdale to the Spokane, Portland & Seattle Railroad Company, which transported the stock to Vancouver, Washington, and there delivered it to the Northern Pacific Railway Company, to be transported to Tacoma. The stock was delivered to the railway company at Stockdale by one F. M. Lacey, the plaintiff’s agent, who at the time of delivery executed a contract, by which it was agreed that the value of each pig was ten dollars and each sheep was three dollars, being the valuation upon which the rate of carriage was based. At the time this contract was entered into, an option was given the shipper to fix a higher valuation upon the stock for which a higher rate was charged, the additional rate being twenty-five per cent added to the rate charged for each 100 per cent or fraction thereof of valuation of the stock over the valuation fixed by the contract entered into.
At the trial of the case, it was conceded that the train upon which the stock was being transported was wrecked by a collision with another train on the defendant’s line, between Vancouver and Tacoma, and that 108 of the sheep were killed and lost to the plaintiff, except for a small sum realized
The main question in the case is upon the measure of damages. The defendant contends that the measure is fixed by the agreement at three dollars for each sheep and ten dollars for each hog lost; while the plaintiff contends that the damages should be measured by the actual value of the animals at the place of destination, as the court instructed the jury. It is claimed by the plaintiff that § 23 of the railroad commission act, as amended in 1907, makes the contract in question void. The defendant argues (1) that this amendment is void because it is not germane to the title of the act, and (2) that if valid, it has no application to the contract in question. The amendment is as follows:
“This act shall not have the effect to release or waive any right of action by the state or any person for any right, penalty, or forfeiture which may have arisen or may hereafter arise under any law of this state; and all penalties accruing under this act shall be cumulative of each other, and a suit for the recovery of one penalty will.not be a bar to recovery of any other. ' And provided, that no contract, receipt, rule, or regulation shall exempt any - corporation engaged in transporting live stock by railway from liability of
Before the passage of this amendment, we had, upon different occasions, passed upon the validity of contracts similar to the one now before us, and had sustained them as not being against public policy. Hill v. Northern Pac. R. Co., 33 Wash. 697, 74 Pac. 1054; Windmiller v. Northern Pac. R. Co., 52 Wash. 613, 101 Pac. 225; Gomm v. Oregon R. & Nav. Co., 52 Wash. 685, 101 Pac. 361, 25 L. R. A. (N. S.) 537; Pierson v. Northern Pac. R. Co., 61 Wash. 450, 112 Pac. 509. In the last named case, we said, in reference to a contract like the one in question here:
“If this contract was freely and fairly entered into, it measures the rights and obligations of the parties, under repeated rulings of this and other courts.”
It follows, therefore, that, unless the rule has been changed by the statute above quoted, the contract in question measures the extent of the plaintiff’s recovery from whatsoever cause. The statute provides:
“That no contract . . . shall exempt any corporation engaged in transporting live stock by railway from liability of a common carrier . . . which would exist had no contract . . . been entered into.” Laws 1907, supra.
This statute means that the common law liability cannot be avoided by contract. It is the duty of the carrier to safely transport the goods, and in case of loss from negligence or otherwise, the carrier is liable for their value, which duty may not be avoided. But the statute does not say, and we think does not mean to say, that the parties may not agree upon the value of the shipment before it is made. It simply means that the duty of the carrier to safely carry cannot be avoided by contract, and this is the public policy which the statute sought to declare. If the property is lost or injured, the carrier is liable for the injury or value of
In speaking to this question, in Barnes v. Long Island R. Co., 100 N. Y. Supp. 593, the appellate division of the supreme court of New York said:
“Chancellor Kent, who undoubtedly understood the common law, in his Commentaries (£ Kent’s Com.'603), lays down the proposition that: ‘The common carrier is responsible for the loss of a box or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance. But the rule is subject to a reasonable qualification; and if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the" value or nature of the article,- or deludes him by his own carelessness in treating the parcel as a thing of no value, he cannot hold him liable for the loss of the goods. Such an imposition destroys all just claim of indemnity; for it goes to deprive the carrier of the compensation which he is entitled to, in proportion to the value' of the article intrusted to his care and the consequent risk which he incurs, and it tends to lessen the vigilance that the carrier would otherwise bestow.”
In that case it was held that a contract fixing the value of the shipment, in substance the same as the contract here, did not attempt to avoid liability, but sought to fix the liability at the value" which the parties agreed upon as the basis for computing freight charges. In Greenwald v. Weir, 115 N. Y. Supp. 311, the court, in discussing the effect of the amendment to § SO of the. interstate commerce act, which provides,- the sarnie as our statute, that- no contract, étc. shall exempt such common* carrier from the liability hereby ■ imposed,- held that the amendment to the Federal statute was declaratory of the common law, but created a new liability by making the initial carrier liable for a loss upon the line of a connecting carrier, and said:
“What the'statute forbids is 'the use of any device whereby the carrier undertakes to ‘exempt’ himself from the newly*261 imposed liability. The use of the word ‘exempt’ is appropriate if it was the intention of the Congress to prevent a carrier from relieving himself altogether from liability for a loss occurring on the line of a connecting carrier, but wholly inappropriate if intended to prevent an agreement between the carrier and the shipper as to the value of the goods to be shipped. Both the Federal courts and the courts of this state have uniformly distinguished between shipping contracts wherein the carrier has undertaken to exempt himself from liability at all and those in which he has agreed with the shipper as to the amount which should be taken as the value of the goods. Contracts of the'first kind have been generally condemned, and contracts of the second kind sustained. . . . This distinction rests upon a sure and substantial basis. The contract of carriage by a common carrier imposes upon the latter a double obligation—that of carriage proper, and that of insurance. It is reasonable and customary to fix a rate to be paid with reference to both liabilities, and in order to fix such rate it is necessary that the carrier should be apprised of the value of the article to be carried.”
See, also, Greenwald v. Barrett, 199 N. Y. 170, 92 N. E. 218; Bernard v. Adams Express Co., 205 Mass. 254, 91 N. E. 325, 28 L. R. A. (N. S.) 293; Larsen v. Oregon Short Line R. Co. (Utah), 110 Pac. 983.
It is apparent, from the reasoning in these cases, that neither our statute nor the Federal statute undertakes to do more than to prevent contracts which would relieve carriers of their common law duty. The common law did not, and our statute' does not, prevent the carrier and the shipper from agreeing úpon the value of the goods. Such agreements, when freely and fairly made, are binding. Freight rates are necessarily based upon the character and value of the goods shipped. It is unreasonable to ■ suppose that a carrier can transport a horse worth $100,000 for the same price for which it can transport one worth only $100. The reason is obvious. The more valuable article requires better facilities and more constant care, attention, and expense.' If the statute' in question means that the shipper and carrier
The judgment appealed from is therefore reversed, and the cause remanded with directions to the trial court to enter
Dunbar, C. J., Parker, Fullerton, and Gose, JJ. concur.