182 Ind. 398 | Ind. | 1914
Lead Opinion
Action by appellee against appellant and one Boss, to recover damages for an alleged failure safely to carry and deliver a mare the property of appellee from Templeton, Indiana, to Huntington, Indiana. Appellee’s complaint alleged that in September, 1909, he was the owner of a standard bred racing mare of the value of $1,500, and that appellant was a railroad corporation, and common carrier for hire, and that its tracks extended through the town of Templeton, Indiana, to the city of Huntington, Indiana; that September 9, 1909, “the defendant Frank Boss was a servant in the employment of the plaintiff, and had said mare in his possession as a horse groom of plaintiff, for the purpose of accompanying the mare from the town of Temple-ton, Indiana, to the town of Huntington, Indiana; that he had no interest in the mare, except that he had the temporary possession of her as the agent and employe of the plaintiff, for the purposes aforesaid; that pursuant to the directions he had given Boss, the latter delivered the mare to the defendant at Templeton, Indiana, and on behalf of the plaintiff demanded and required of defendant company, as a common carrier, to transport the mare, and Boss in the car, as a man in charge of her, from the town of Templeton to the city of Huntington; that the defendant undertook, and agreed to transport the mare with safety, and reasonable dispatch from Templeton to Huntington, and plaintiff, by Boss, placed the mare in one of the cars of defendant, furnished by it for that purpose, and paid and became indebted and obligated to pay the transportation charges on the mare to Huntington.” Facts are alleged showing that the mare
Ross filed a disclaimer. Appellant’s demurrer to the complaint for want of facts was overruled, and it filed an answer in seven paragraphs, and the court sustained appellee’s demurrer for want of facts to the first, second and fifth of said paragraphs. There was a reply in general denial, and a plea of non est factum, to the answers, setting up a special contract of carriage, a demurrer to which for want of facts was overruled, and on the trial appellee had judgment for $1,000. The reply of non est factum denied specifically the execution of the contract by appellee, or by any one by his authority. The errors assigned are, in overruling the demurrer to the complaint, sustaining the demurrers to the first, second and fifth paragraphs of answer, respectively, overruling the demurrer to the reply of non est factum, and in overruling the motion for a new trial.
Appellant’s first contention is, that the complaint does not show any consideration on the part of appellee for the contract, inasmuch as it does not allege that appellee paid, or tendered to appellant, a sum of money equal to the rate established by law. The cases cited by appellant hold, that the mere allegation that the contract was made upon full and sufficient consideration without stating the particular facts in regard to this consideration is not sufficient. However in this case, the complaint does not allege that there was a consideration, but states that appellee “paid and became indebted, and obliged to pay the charges for transportation”, etc. This sufficiently states the
The first paragraph of answer alleges reception of the mare for transportation from Ross, without knowledge that she was the property of appellee, and carriage under a written contract, set out, hence there could be no recovery under the contract alleged in the complaint. The second paragraph sets up the receipt of the mare for carriage, and her carriage under a written contract, set out, limiting liability to $100, and offering to consent to judgment for that amount. The third paragraph alleges the carriage under a written contract based upon a consideration of 30 cents per hundred pounds, that three horses were shipped at the same time, under the same contract at a gross weight of 11,000 pounds, and that such consideration was a sufficient consideration for the contract, and that it was fairly entered into after a tona fide opportunity to transport at a fair and reasonable rate, without limitation of liability, and that in consideration of the reduced rate, it was agreed that the valuation of each animal would not exceed $100. The fourth paragraph is the same as the third, except that it alleges a provision that no claim shall be made unless a verified claim in writing is filed with the freight agent of appellant at Cincinnati, Ohio, within five days from the date the stock is remoyed, and that no such claim was filed. The fifth para
It is well settled that a common carrier may enter into a contract with the shipper by which its liability is limited in consideration of a reduced rate of transportation, provided the shipper is given a full, fair and dona fide opportunity to ship under a higher rate and with unlimited liability on the part of the carrier, but it is not necessary that the shipper should have actually been offered the
The whole scope, tenor and apparent purpose of the State act is to make the rate fixed in the schedules, filed with the commission, or those fixed by the commission, or by the courts, the standard of reasonableness, and as based on a sufficient consideration. This seems to arise necessarily from the provisions of the act of 1907, under which this action arose, as shown by §§5534, 5540, 5541, 5543, 5545, 5549 Burns 1908, Acts 1907 p. 454. The Elkins act of 1903, with the wide scope of the Hepburn and Carmack amendments of 1906, by which §15, the rate section of the Interstate Commerce Act, was recast, furnished the basis of the State act of 1907, which was practically an adoption of the amended Interstate Commerce Act, and we must assume, with the constructions then placed upon it. Upon analogy, and the similarity of the State act to the Interstate Commerce Act, it is sufficient that the rate has been fixed, and filed, and notice of it posted. Priddy v. Wabash R. Co., supra; Kansas City, etc., R. Co. v. Carl (1913), 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Chicago, etc., R. Co. v. Kirby (1912), 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; Texas Pac. R. Co. v. Mugg (1906), 202 U. S. 242, 21 Sup. Ct. 628, 50 L. Ed. 1011; Arthur v. Texas, etc., R. Co. (1905), 139 Fed. 127, 71 C. C. A. 391. It seems to be well settled by the decisions under the Interstate Commerce Act, that where the shipper has an opportunity to ship without limitation, he can not take advantage of a special rate based upon the conditions and limitations of a special contract, and then repudiate the condi
The answers to which demurrers were sustained were good, and the court erred in sustaining them, unless the facts could have been proved .under the remaining answers, or the act of 1905 is invalid, or has been superseded. The facts alleged in the first, second and fifth paragraphs of answer could have been shown under the remaining answers.
Appellant complains of the action of the court in overruling the demurrer to the reply of non est factum. The complaint alleges that Ross was appellee’s agent to ship the mare, and had no interest in her, and that appellant knew that she was the property of appellee. The two latter allegations are of no materiality in view of the allegation that Ross was appellee’s agent to make the shipment, which was done in his own name, and consigned to himself, for the reason that as a matter of law, appellee was bound by the act of his agent in making the shipment, and entering into the contract in the absence of fraud, collusion, deceit or overreaching in its execution, which is not alleged or claimed, where the rate is fixed, and filed with the commission as a basis for the special contract. That is, he can not claim the benefit of the contract on the one hand, and repudiate the conditions from which the benefits arise, on the other. Adams Express Co. v. Byers (1912), 177 Ind. 33, 95 N. E. 913; Adams Express Co. v. Carnahan (1902), 29 Ind. App. 606, 613, 63 N. E. 245, 64 N. E. 647, 94 Am. St. 279, note, and cases there cited; McElvain v. St. Louis,
There is however not wanting authority for the doctrine that such contracts are in and of themselves invalid as against public policy, where the limitation is greatly disproportionate to the value. Southern Express Co. v. Owens (1906), 146 Ala. 412, 41 South. 752, 119 Am. St. 41, note, 8 L. R. A. (N. S.) 369, 9 Ann. Cas. 1143; Southern Express Co. v. Gibbs (1908), 155 Ala. 303, 46 South. 465, 130 Am. St. 24, 18 L. R. A. (N. S.) 874, note; Hughes v. Pennsylvania R. Co. (1902), 202 Pa. St. 222, 51 Atl. 990, 97 Am. St. 713, 63 L. R. A. 513, note. These cases, however, seem to be based either on a statute, or a declared public policy to prohibit such contracts; while the decisions of the Federal courts under the Interstate Commerce Act uphold them. Our own statute is an adoption of the Interstate Commerce Act, presumptively with the construction put on it, and it would seem wise to have a uniform rule, at least until the State shall declare a different public policy.
It is urged that if there was error in this ruling, it was harmless for the reason that the court instructed that if the jury found from the evidence “that the shipment of the mare * * * was made under the terms ¿ a written contract fairly entered into, based on a reduction in the freight rates for transportation * * * then I instruct you that plaintiff is not entitled to recover”, followed by a finding by the jury that appellee did not execute, or authorize Ross to execute the contract set up by appellant. Two elements enter into the consideration of the question: (1) the fact of execution itself, and (2) whether it was fairly entered into, based upon a reduction of the rate. The question of the execution of the contract was a proper subject of reply and inquiry, and overruling the demurrer thereto was not error. The second proposition entering into the question of execution, nee
As to the question of the execution of the contract, the’ instruction could only be justified upon the theory that appellee must either have executed it himself, or known of, or specifically authorized its execution, and the jury was so instructed by instruction No. 4, and under such circumstances, the jury was clearly misinstructed, and could not well have answered otherwise than it did. The court was also requested to instruct by appellant’s instruction No. 4, that i.f appellee left the mare with Ross to be shipped, or if he left her with some other person to be shipped, that Ross in the one case, or the other person in the other ease, was authorized to execute the contract, and that it is binding upon appellee. ¥e see no escape from the proposition that this was error both ways, unless appellee was denied the right to ship without
“Agents will be careful to explain the following requirements to shippers, viz., race horses, stallions, and other high priced animals, when consignors are unwilling to have the same transported at the above list of values, (referring to limited valuation) will be taken only by special arrangement, at one and one-half first class rates, calculated at the estimated weight named below, (the shipping weight) but agents must not accept for shipment such valuable animals without first communicating with the general, or division freight agent. ’ ’
Immediately following the schedule of values and rates is this clause:
“Animals of greater value than given above will be subject to a corresponding advance in weights furnished in the above tables.”
The official classification and tariff rates set out in the schedule, include horses, mules, stallions, jacks, and race horses, with the rate fixed, based upon values and rates, and number of animals in each ear up to $5,000 in value for each animal, at one and one-half times the limited liability rate, when shipment is requested or made without limitation of liability. This case does not fall within the rule declared in Cleveland, etc., R. Co. v. Hollowell, supra, nor is it affected by any constitutional provision or statute, which prohibits contracts of the character of the one before us, so that the construction of the clause relied on by appellee is immaterial, for the reason that shipment was not denied or restricted. There was no delay or refusal to ship, except by special agreement, or to accept for shipment without communicating with the general or division freight agent, or any unwillingness on the part of the shipper to ship under the uniform bill of lading, or request to ship without limitation.
The rigor of the liability of the common law may be modified by just, fair and reasonable agreement, except for negligence, and while shipment must be made without such agreement, if the shipper so demands, and according to the schedule, in case a shipper declines to ship under the classified, uniform livestock contract, with limited .liability, if no joint rate has been established, and the local rates applying to the shipment were not at hand, a through shipment could not be required until the one or the other had been obtained. Southern R. Co. v. Reid (1912), 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257; Caw v. Texas, etc., R. Co. (1904), 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; Adams Express Co. v. Croninger (1913), 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Arthur v. Texas, etc., R. Co., supra; Kansas City, etc., R. Co. v. Carl, supra; Missouri, etc., R. Co. v. Harriman Bros., supra. If however carriage is undertaken without the through or local rate having been established, the liability of the primary carrier is the same, even though the shipment is routed by the shipper, beyond the carrier’s own line. Norfolk, etc., R. Co. v. Dixie Tobacco Co. (1913), 228 U. S. 593, 33 Sup. Ct. 609, 57 L. Ed. 980. The whole scope and tenor of both the Interstate Commerce Act and the State act is to adopt the rate filed with the commission as reasonable, and it was so held in both Federal and State courts when this act was enacted in Indiana. Tift v. Southern R. Co., supra; Young v. Kansas City, etc., R. Co. (1899), 33 Mo. App. 509; McGrew v. Missouri Pac. R. Co. (1893), 114 Mo. 210, 21 S. W. 463; Windsor Coal Co. v. Chicago, etc., R. Co. (1892), 52 Fed.
Appellant attacks the act of February 27, 1905 (Acts 1905 p, 58, §§3918-3920 Burns 1914), on the ground that these sections are in violation of §22, Art. 4, of the State Constitution, as being a special law, prohibited as to “regulating the practice in courts of justice”. In view of our conclusions, it is unnecessary to pass on that question, for if appellant is not affected by it, it is in no situation to present a question which might affect others. Gordon v. Corning (1910), 174 Ind. 337, 92 N. E. 59; Cummins v. Pence (1910), 174 Ind. 115, 91 N. E. 529; Hammer v. State (1909), 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. 248, 21 Ann. Cas. 1034; Knight & Jillson Co. v. Miller (1909), 172 Ind. 27, 87 N. E. 823, 18 Ann. Cas. 1146.
It is to be observed that the practice act of 1905 (Acts 1905 p. 58, §§3918, 3919 Burns 1908) was approved February 27, and the Railroad Commission Act (Acts 1905 p. 83, §5531 et seq. Burns 1908) was approved February 28, though both went into effect April 15, 1905, but the latter act had a clause repealing all laws, and parts of laws in conflict with it. The presumption against implied repeal of statutes enacted at the same session, or close together, is strong, and they should be so construed as to give effect to both if possible, or at least to any portions which may be reconciled (Cummins v. Pence, supra), but laws are also presumed to be passed with deliberation, and with knowledge of existing laws on the same subject, and when there is, as here, an express repeal of all laws in conflict, the in
At common law the burden of showing the rate claimed as reasonable is on the carrier. Does the act of February 27, 1905, do any more than declare the common-law rule? If it stood alone and unaffected by the later act, we should have little difficulty with it on that question, but we are confronted with the act passed the next day with an express repealing clause of all laws and parts of laws in conflict with it (Acts 1905 p. 83, supra), and by §5 it is expressly provided that the rates filed and published “shall be held, deemed and accepted to be reasonable, fair and just, and in such respects shall not be controverted” in actions, except in direct actions to modify the same under other sections,
It appears from the evidence, that there was no inquiry for, or denial of a common-law carriage, and that a demand for it would have been complied with, and that the application for shipment was made on Sunday, and the actual delivery for carriage was not made until 7 p. m. Monday, so that we are unable to concede appellee’s contention that such demand would have been unavailing.
An ingenious and forceful argument is made by the learned counsel for appellee, while not attacking the validity of the Railroad Commission Act, to the point, that the common-law right of shipment at a reasonable rate without limitation of liability can not be taken away, or the court divested of the power, or relieved from the duty of determining what are fair and reasonable rates, by any commission, which shall take the place of courts. While recognizing
The views expressed by the writer in which Erwin, J., concurs as to the act of February 27, being superseded by the act of February 28, and as to the first, third and fifth paragraphs of answer being good, but provable under the other
For the error in giving instruction No. 4 and refusing instruction No. 4 requested by appellant as pointed out herein, with respect to the execution of the contract, the judgment must be reversed, with instructions to the court below to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.
Concurrence Opinion
Concurring Opinion.
It is urged by appellant that the act of the General Assembly of Indiana passed February 27, 1905
(Acts 1905 p. 58, §§3918-3920 Burns 1914), is void because in conflict with §10 of Art. 1, of the Federal Constitution, and certain provisions of the 14th amendment to the Federal Constitution. This claim is unfounded. Adams Express Co. v. Croninger (1913), 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and cases cited; Hirth-Krause Co. v. Cohen (1912), 177 Ind. 1, 97 N. E. 1, Ann. Cas. 1914 C 708; Cooley, Const. Lim. (7th ed.) 555, 556; Mondou v. New York, etc., R. Co. (1911), 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Mobile, etc., R. Co. v. Turnipseed (1910), 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, Ann. Cas. 1912 A 463, 32 L. R. A. (N. S.) 226. Appellant also claims that the act violates §23 of Art. 4, of the Constitution of Indiana. The point is not well taken. It was for the legislature to determine whether a general law was applicable to the remedy sought. Gentile v. State (1868),
Counsel for appellant zealously contend that the statute is in conflict with §22 of Art. 4, of our Constitution which prohibits the legislature from passing “local or speeial laws * * * regulating the practice in courts of justice”. This section does not prohibit classification, however, if the same be natural, reasonable, and fair. Indianapolis St. R. Co. v. Robinson (1901), 157 Ind. 232, 61 N. E. 197; Board, etc. v. Lindeman (1905), 165 Ind. 186, 73 N. E. 912; Woods v. McCay (1895), 144 Ind. 316, 43 N. E. 269, 33 L. R. A. 97; Carr v. State (1911), 175 Ind. 241, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190; Hirth-Krause Co. v. Cohen, supra. The act reads as follows: “Section 1. That in all actions against common carriers on account of the failure by such carriers to safely transport and deliver property received by them, it shall be sufficient for the shipper or person entitled to maintain such action to aver and prove, in the first instance, the delivery to and receipt by the carrier of such property for transportation to a point named, together with the failure of the carrier to so transport or deliver and the resulting damage.” §3918 Burns 1914. “Section 2. Any limitation by contract of the common law liability of such carrier is hereby made a matter of defense which shall be specifically set up by answer and which shall not be provable under a general denial. Such affirmative answer shall state facts showing that the contract counted upon is based upon a sufficient consideration, that is reasonable, that it was fairly entered into by the shipper after he had been given a bona fide and full opportunity to ship at a fair and reasonable rate without limitation of liability.” §3919 Burns 1914. “Section 3. A reply of a general denial shall be sufficient to close the issue. And the issue thus formed shall be tried as other issues of fact are tried.” §3920 Burns 1914.
Do the limitations of its provisions to actions against com
The case of United States Express Co. v. Joyce (1905), finally reported in 36 Ind. App. 1, 69 N. E. 1015, was an action involving a limited liability contract, and was appealed to the Appellate Court, and there the judgment below was affirmed on February 4, 1904. On petition the cause was transferred to this court, where the judgment was reversed on December 29, 1904, 72 N. E. 865. Two of the judges dissented. Within a short period thereafter, the personnel of this bench changed, and the opinion was stricken from the files, and the cause remanded to the Appellate Court, which again handed down its original opinion of affirmance. This enactment of this statute was on February 27, 1905. It thus not only appears that when this law of 1905 was enacted there was conflict among the decisions of the courts of the various states, relative to suits involving limited liability contracts, but there was also confusion and uncertainty in the decisions of the appellate courts of this State. In Indianapolis St. R. Co. v. Robinson, supra, this court held that the act of 1899 (Acts 1899 p. 58, §362 Burns 1914), which cast on defendants, in personal injury actions, the burden of proving the defense of contributory negligence, did not violate the constitutional provision in question, although the act was subject to the unusual criticism that where, in the same action, redress was sought for injury to person and property, resulting from the same accident, the plaintiff had the burden of alleging and proving freedom from contributory negligence, in reference to the property injury, while the defendant had the burden of proving such negligence in regard to the injury to plaintiff’s person. In view of the foregoing, we are of the opinion that the classification made by this act was not arbitrary,
Blumenthal v. Tibbets (1903), 160 Ind. 70, 73, 66 N. E. 159; State, ex rel. v. Board, etc. (1908), 170 Ind. 595, 621, 622, 85 N. E. 513, and authorities cited; 36 Cyc. 1086. (5) Two acts which took effect the same day, (as here) unless clearly irreconcilable, must be construed as being in pari materia. Sanders v. State (1881), 77 Ind. 227. (6) It is a maxim of general application, that general things do not derogate from things special. Black, Interp. of Laws 117. As applied to the question of an implied repeal of an earlier by a later act of the same session, it is held that the later act, if in general terms, and not expressly contradicting the provisions of the earlier one, shall not be considered as intended to affect its more particular and specific provisions, unless absolutely necessary to hold otherwise in order to give any meaning, at all, to the words of the later act. Black, Interp. of Laws 117; Sedgwick, Stat. and Const. Law (2d ed.) 98; 1 Lewis’ Sutherland, Stat. Constr. (2d ed.) §275; Dwarris, Statutes 765; Deneen v. Unverzagt (1907), 225 Ill. 378, 80 N. E. 321, 8 Ann. Cas. 396, and cases cited; Jersey City v. Hall (1910), 79 N. J. L. 559, 76 Atl. 1058, Ann. Cas. 1912 A 696; 36 Cyc. 1088, and authorities. The reason for such rule is clear. In passing the special act, the minds of the legislators were necessarily directed to the details of the special ease, and it is not probable that they should intend, by a general act, to derogate from that which they have carefully supervised and regulated. Lewis v. Cook County (1897), 72 Ill. App. 151; 36 Cyc. 1088. (7) Where a particular
The object of all rules of statutory construction is the ascertainment of’ the legislative intent. Board, etc. v. Given (1907), 169 Ind. 468, 80 N. E. 965, 82 N. E. 918. In the search for such object, it is proper to consider the common law, and other statutes relative to the same subject-matter, together with contemporaneous legislative history, and the evils at which the legislation was aimed. State Board, etc. v. Holliday (1898), 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826.
9.
By §3 of the railroad commission act (§5533 Burns 1908, Acts 1907 p. 454) it is made the duty of the commission to “supervise” railroad freight rates, but the provisions of the section are expressly limited by clause h thereof, to cases where complaint against the carrier is filed with the commission. It does not appear that the rates here were ever the subject of consideration by the commission. They were made by the carrier and filed with the commission, as required by the act, but it is not alleged that they were ever approved by that body as a result of any hearing or investigation. The commission is authorized by clause b, §3, of the act, on failure so to do by the carriers, to establish joint freight rates, and by clause d thereof, to change or abolish rates found to be unreasonable, unjust or discriminative. By §5 of the original act (Acts 1905 p. 83) it was provided that in actions between private parties and carriers, under the law, rates approved by or made by the commission before the commencement of the action, should be deemed just and reasonable, and, in such respects not subject to controversy, except as thereinafter provided. This provision was eliminated by the amendment of 1907. Acts 1907 p. 468. Section 6 of the act as amended (§5536
In relation to the making of rates, filing schedules thereof with the commission, and the penalties against discrimination, it may be conceded, so far as concerns this controversy, that our railroad commission law is a substantial adoption of like provisions of the Interstate Commerce Act. Previous to the adoption of the Carmack amendment to the Interstate Commerce Act in 1906, there was a great diversity of laws in the several states relating to carrier’s limited liability-contracts. In some states such contracts were inhibited by constitutional provisions, statutes, or the state’s pub-
Pennsylvania R. Co. v. Hughes (1903), 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268, involved a judgment under an interstate shipment, for $10,000 in favor of a shipper, in an action for the value of a horse, shipped under a special contract, to be performed in Pennsylvania, which, on its face, limited the recovery to the stipulated valuation of the animal, in the sum of $100. The common law, as interpreted by the supreme court of Pennsylvania, rendered the limitation invalid. It was contended by the carrier, that the law of Pennsylvania, as construed by its courts, was in conflict with the provisions of the interstate commerce act and hence invalid. In the course of the opinion it is said: “It may be assumed that under the broad power conferred upon Congress * * * it would be lawful for that body to make provision as to contracts for interstate carriage, permitting the carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. * * * we look in vain for any regulation of the matter here in controversy. There is no sanction of agreements of this character limiting liability to stipulated valuations, and, until Congress shall legislate on it, is there any valid objection to the state enforcing its own regulations upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage?” Adams Express Co. v. Croninger, supra, was decided by the Supreme Court of the United States in January, 1913. The opinion was delivered by Mr. Justice Lurton, and in discussing the eases of Chicago, etc., R. Co. v. Solan (1898), 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688, and Pennsylvania R. Co. v. Hughes, supra, he said: “In view of the decisions of this court in the two eases last referred to, we shall assume that this case is governed by them, unless the subsequent legis
It was then held that by virtue of the provisions of the Carmack amendment, the Interstate Commerce Act superseded all statutory and declared policy regulations of the various states. This conclusion was reached, not because of any conflict between such regulations and the interstate act, for the opinion concedes that “there is no reference to the effect upon state regulation” in the interstate act as amended ; but it was arrived at, because Congress, by the amended act, was held to have intended thereby to cover the entire field. At no time could a state regulation have been upheld, had it been conceded as conflicting with the act of Congress, even though the scope of congressional legislation was limited; on the other hand, after congressional legislation did cover the entire field, no state regulation of interstate commerce could be held effective, even though conceded to be in aid of the act of Congress, and to more effectually carry out the obvious intent of the congressional act.
It should not be overlooked that the decision in the Croninger case involved nothing but an interpretation of the commerce act, standing alone. Had there been, in addition thereto, a previous act of Congress, similar to our act, regulating the enforcement of limited liability contracts, it is scarcely conceivable from the reasoning of the opinion, that the Supreme Court of the United States would have reached the conclusion that it did. In matters involving an interpretation of the Interstate Commerce Act, the determination of the Supreme Court of the United States is the law of the land and binding on the supreme courts of the various states. Wabash R. Co. v. Priddy (1913), 179 Ind. 483, 101 N. E. 724. The present case involves nothing but intrastate traffic, and the duty of construing our State statutes with reference thereto
In Pittsburgh, etc., R. Co. v. Mitchell (1911), 175 Ind. 196, 91 N. E. 735, 93 N. E. 996, the complaint contained the averments required by the act of February 27, 1905. The shipment was an interstate one, and the defendant, among other things relied on a limited liability contract, ;and contended that our act of February 27, 1905, conflicted with the interstate commerce act, “in that the latter recognizes but one rate”. It was held by this court that there was no conflict between the two acts. It is true that the above case was decided before .the decision of the Croninger case, supra. It is also true that the shipment in the Mitchell case was made after the Carmack amendment was adopted, and for reasons already stated, there is no conflict between the decisions in the Mitchell and Croninger cases, in relation to conflict between the acts, though there is conflict as to the scope of the interstate commerce law, as amended in 1906. Our railroad commission law was enacted more than a year before the adoption of the Carmack amendment. However, in 1907, the act was amended so as to contain the same provisions in regard to rate discrimination as are found in the 1906 amendment of the interstate act. These amendments however cannot justly be said to affect the controversy here relative to the legislative intent. The Interstate Commerce Act was passed in 1887. U. S. Comp. Stat. 1901 p. 3154. It then denounced' discrimination and affixed a penalty. §§2, 3, 10 of same act. By the act of March 2, 1889, the original act was amended so as to make it a misdemeanor
In Cleveland, etc., R. Co. v. Hollowell, supra, the shipment was made in June, 1906. The cause was decided in 1909. It was contended there by appellant, that our act of February 27, 1905, was unconstitutional. The court held it was not necessary to determine that question, because, under the findings, the contract was invalid at common law. If appellant’s contention here is sound, that decision was erroneous, for if our commission law shall be construed as impliedly repealing the limited liability statute, it must, for stronger reason, be held to supersede any like common-law rule to the same effect.
It will not be contended that the legislature was without power to except limited liability contracts, or, as it is generally termed, released rates, from the measure of conelusiveness accorded other ones, and consequently it is not necessary here to determine such measure with reference to any other than released rates. However, under a Minne-sota statute which expressly declared that the carrier’s published rates should be "deemed just and reasonable”, a shipper who shipped chattels at the published rate was
It does not necessarily follow that because the legislature has fixed a penalty for charging any other than the published rate, that the latter must be held conclusively just and reasonable. A conspicuous example of such principle is found in our marriage laws. Persons may be punished criminally for entering into the marriage relation, without having first procured license, or taken the statutory steps for preserving a record of the marriage, and yet the latter be entirely valid. Teter v. Teter (1885), 101 Ind. 129, 134, 54 Am. Rep. 742. Section one of the Elkins act (1903) provided that in criminal prosecutions, the published rate should be “conclusively deemed to be the legal rate” (U. S. Comp. Stat. 1901, Supp. 1907 p. 880) ; yet such provision did not, previous to the congressional legislation of 1906, conflict with state regulations concerning released rates which restricted their validity to cases where it was shown, on proof, that they were reasonable. Adams Express Co. v. Croninger, supra.
Keeping in mind the evident legislative purpose in enacting the commission act, as not to restrict but to enlarge the rights of the shipper, and not to extend the privileges of the carrier, but rather to curtail them, it is difficult to reconcile the proviso in clause d, §11 of the act (§5541 Burns 1914, supra), with the legislative intent to repeal the former one. The normal function of a proviso is to limit and restrain the preceding enactment. 2 Lewis’ Sutherland, Stat. Constr. §§351, 352. This proviso declares “that nothing herein contained shall be construed as to abridge, or in anywise lessen the liability of any such carrier as it now is under existing laws.” Under the common law, as declared by the Appellate Court, at the beginning of the legislative session of 1905, in Evansville, etc., R. Co. v. McKinney
No obscurity affects the language of the proviso, and it is its own best expounder of the legislative intent. To say that the theory of implied repeal, here presented, would not abridge or lessen the liability of carriers under then existing laws, requires a construction ignoring the plain meaning of nontechnical words — a construction never permissible. Subd. 1, §240 Burns 1914, §240 R. S. 1881. However,, should this proviso be ignored, and conceding that the courts erred in Pennsylvania R. Co. v. Hughes, supra, and cases following it, and in Pittsburgh, etc., R. Co. v. Mitchell, supra, and disregarded all the rules of construction heretofore enumerated except the sixth and seventh ones, it must be held under these two rules that the specific provisions of the act of February 27,1905, were not repealed by the general ones of the act of February 28, but that these particular provisions were intended to stand as exceptions to the general scope of operation of the commission act. Crane v. Reeder, supra; State, ex rel. v. McCardy, supra. This conclusion conflicts with no rule of construction, and is in unison with the obvious general intent of the legislature in both acts to secure to the shipper fairer treatment than theretofore accorded him.
The act of February 27, 1905 (Acts 1905 p. 58), is valid and in full force and effect and consequently the court did not err in sustaining appellee’s demurrer to the paragraphs
Cos, C. J., and Spencer, J., -concur in foregoing opinion of Morris, J.
Note. — Reported in 105 N. E. 483, 491. As to limiting liability on joint undertaking between initial and connecting carriers, see 31 L. R. A. (N. S.) 50. On the elements entering into determination of reasonableness of railroad rates prescribed, by the state for local traffic, see 15 L. R. A. (N. S.) 108; 25 L. R. A. (N. S.) 1001. As to the authority of an agent shipping goods to enter into a contract limiting the liability of the carrier, see 1 Ann. Cas. 676; 19 Ann. Cas. 806; Ann. Cas. 1913 E 292. As to carrier’s liability for loss of or injury to live stock, see 130 Am. St. 432. See, also, under (1) 6 Cyc. 515; (2) 6 Cyc. 385, 393; (3) 6 Cyc. 408; (4) 38 Cyc. 1632; (5) 38 Cyc. 1703; (6) 6 Cyc. 403; (7) 6 Cyc. 518; (8) 36 Cyc. 1013; (9) 36 Cyc. 1093; (10) 36 Cyc. 1071; (14) 36 Cyc. 1106, 1137, 1145, 1147; (15, 17) 6 Cyc. 1915 Ann. 492-45; (16) 11 Cyc. 751.