150 N.W. 777 | S.D. | 1915
Lead Opinion
In this case plaintiff, by his complaint, alleged 'that he delivered to the Union Pacific Railway Company, at Grand Island, Neb., certain horses for transportation to Aberdeen, S. D.; that said horses were carried by said Union Pacific
*61 “One illustration would be, a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carriers, for a loss or damage incurred upon the line of the .former. The liability of such succeeding carrier in the route would be that imposed 'by this statute, and for which the first carrier might have been made liable.”
The precise question involved in the case -at bar is whether or not suit may be maintained against a succeeding or connecting carrier by a shipper where the injury is known and alleged to have occurred by reason alone of the negligent acts of the connecting carrier. We are constrained to the view that there is nothing in the Croninger decision that has or was intended to have any application whatever to the proposition involved in this case. The only question before the court in that case was whether or not the substantive law of the state or the substantive federal law governed the fixing" of. the substantive liability of the carrier, and that irrespective of whether such carrier- be initial or connecting. .The question as to whether the initial carrier only could be sued in such cases was in no manner before the court in the Croninger case, and what was said by the court in that case only referred to the question of substantive liability, and had no reference whatsoever as to whether or not 'a succeeding carrier might -or might not be sued as well as the initial carrier. Under the language •.quoted from the Croninger decision, “the (substantive) liability of such succeeding carriers” would, most certainly, be that imposed by the federal law, and not that imposed by the state enactment, and would be the same liability “for which the first (or initial) carrier might have been made liable” had suit been brought against the initial instead of the succeeding -carrier. If the succeeding carrier could -not be sued1 a-t all, then there would be no liability against the connecting carrier to be applied against the “first carrier”; 'clearly indicating, as we think, that the. court in the ■Croninger case only had in view the question of substantive liability.
*62 “That nothing in this section shall deprive ‘any holder of such receipt or 'bill of lading of any remedy or right of action which he has under existing law.”
The initial and succeeding carriers, where injury occurs to a shipment of goods, may all be tort-feasors, any one or all of which may be sued for such injury. The connecting carrier, whether intermediate -or terminal, was not liable for damages not occurring on its own line, but was alone liable for its own independent negligent acts which did occur on • its own line. See note 31 R. R. A. (N. S.) pp. 90, 92, and 94. These were the rules as to the remedies and rights of action of the shipper both in the federal and state courts existing .prior to and at the time of the enactment of the Carmack Amendment. The Carmack Amendment merely places the shipper in a position where he may be able to recover for injured property and relive himself, oftenr times, from the task .of locating the active tort-feasor. But if the shipper knows which one among a number of carriers caused the injury, he may sue that one alone. Galveston Ry. Co. v. Piper, 52 Tex. Civ. App. 568, 115 S. W. 107; Otrich v. Ry. Co., 154 Mo. App. 420, 134 S. W. 665; McMillan v. C., R. I. & Pac. Ry. and G. N. Ry., 147 Iowa, 596, 124 N. W. 1069; Tradewell v. C. & N. W. Ry., 150 Wis. 259, 136 N. W. 794; Storm Lale Tub & Tank F. v. M. & St. R. Ry. (D. C.) 209 Fed. 895; Uber v. C., M. & St. P. Ry., 151 Wis. 431; 138 N. W. 57. There is nothing in the Croninger decision that conflicts with or overrules these decisions of tire state courts. It is- certain ¡that both the state and federal -court do consider like cases and render judgment against connecting carriers since the enactment of -the 'Carmack Amendment, and this as late -as -the month of June, 1914. M., K. & T. Ry. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377. If the -connecting carrier -cannot be sued .at all, it would produce in some instances a most unconscionable and unreasonable state of affairs. A shipment of merchandise might be started -over -the line of an initial carrier in the state of Massachusetts destined to some shipper at -some point in this state, and some injury occur in this state at or near the destination point. All the -evidence and all the witnesses might he situated in this state. It would amount to •practical denial of justice to compel the shipper, or the connecting carrier, to take -the evidence and the witnesses all tíre way to
“That nothing in this section shall deprive any holder of such * * * bill of lading of any remedy or right of action which he •has under existing law.”
The order appealed from is affirmed.
Concurrence Opinion
(concurring). Having carefully considered the reasoning of Justice Smith, and being firmly convinced that he has placed a wrong construction upon the words of Justice Eurton quoted from the Croninger case, I feel constrained, in view of the. unusual importance of the question before us, to add a few words to what seems to me to be a most clear and convincing discussion thereof by Justice MeCOY.
When construing the language of any opinion, the one thing which, above all others, should always be kept in mind, is: What was the real question before the court for consideration and which was necessarily answered by such decision. Having ascertained what was the question considered, then, presuming, as one should, that every word used was intended to have some bearing upon such question, it should be possible to arrive at an absolutely corned: construction of such opinion. What was the question before the' court in the Croninger case? It was certainly not the question of the right of a shipper to sue a connecting carrier, as such question was not in the remotest degree connected with the case. Two questions were before the court in that case: (i) Did the Carmack Amendment or the law of Kentucky control the validity of the contract whose terms fixed a limitation of value upon the property described in a bill of lading, the shipment being interstate? (2) Was such limitation valid under federal statute? It was the first of these questions that demanded the chief attention of the federal court, and it was in connection with the discussion thereof that Justice Eurton used the words quoted by Justice SMITH and upon which, as I am convinced, he has placed an erroneous construction. Previous to the enactment of the Carmack Amendment, it had been held that the state law — statutory or 'otherwise — controlled the validity of a contract entered into within a state even though such contract related to an interstate shipment. Penn. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268. It was contended that the body of this amendment was enacted for the purpose of rendering the initial carrier
“Prior to that (Carmack) amendment the rule of carrier’s liability, for an' interstate shipment of property, as enforced in both federal and state courts, was either that of the general common law as declared by -this court and enforced in the federal courts throughout the United States (Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717), or that determined by the supposed public policy of a particular state (Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268), or that prescribed by the statute laws of a particular state (Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 18 Sup. St. 289, 42 L. Ed. 688).”
He thus called attention to three classes of law, distinguished the one from the other according to the source from whence each sprang, and noted that the federal court had, prior to such amendment, recognized all three of these classes of law as controlling the liability of carriers in particular cases; in answer to the contention that the proviso' in such amendment had the effect o£rendering the terms of interstate contracts still subject to all the above three classes of law, Justice Lurton says:
“This view is untenable. It would result in the nullification of the regulation of a national subject and operate to maintain the confusion of the diverse regulation [the common law as declared by- the federal court, the law as determined by the .supposed public policy of a particular state, and the statutory law of a particular state] which it was the purpose of Congress to put an end to.”
Justice Lurton recognized that there was a limitation to the
“To construe -this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing- federal law at the time -of his action gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would * * * destroy the act itself.”
He thus announced what “existing law” must still be recognized in determining- what remedy or right of action one had tinder the Carmack Amendment, but he did 1 not, in any manner, determine against whom such right of action existed; this question not being before the court. But, >as • illustrating how this federal law would be controlling, even in an action brought against the connecting carrier, who, of course, would not be a party to the shipping contract, and, by the same words, clearly recognizing the continuance of a right of action by the shipper against the. -connecting carrier, Justice Burton continued :
“One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for -a loss or damage incurred upon the line of the former. The liability -of -such succeeding carrier in the route would be that imposed by this statute, and for which the first carrier might have been- made liable.”
In other words, Justice Burton said: One illustration of the -effect of -this amendment is that, if a party elects to proceed against a succeeding -carrier in- preference to proceeding against the carrier with whom his contract is made, yet, under such amendment, the terms of such contract will fix the liability of the succeeding carrier just as it would have fixed that of the primary carrier if such party had elected to take advantage. of
If anything more was needed to establish the correctness of the above conclusion, it is -found in the following: In referring to the -effect o-f the Carmack Amendment, Justice Day, in Boston & M. R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, says:
“T-he subject of interstate transportation of property has ■been regulated by federal law to the exclusion of the power of •the states to -control in such respect by their own policy or legislation.”
And he cites the Croninger case as supporting the above. And in the -same case Justice Pitney, referring to- the Croninger case, says that therein it was held:
“That by the Carmack Amendment the subject-matter of the liability -of railroads under bill-s of lading issued for interstate freight is -placed under federal regulation so as to supersede _ the local law and policy of the several states, whether evidenced bv judicial decision, by statute, or by state Constitution.”
And Justice Pitney also s-ays that the Croninger case held affirmatively:
“That in matters not covered by its own express terms it had the effect of establishing the common-law rules respecting the carrier’s liability, as laid -down in the -previous decisions of this court, and adopted generally by the federal courts.”
If there was left any doubt as -to -the holding in the Croninger case, if there was room- for one to infer, fro-m the lan
“As to whether the plaintiff in error, as the final carrier in the route, was entitled to the benefit of the stipulation in the release signed, releasing the * * * primary carrier 'and all ■other railroad and transportation companies over whose lines the * * * property may pass to destination, from any loss or damage the propery ma}*- sustain in excess of $5 per hundredweight.’ ”
Remembering that the consideration of this question, when raised in an action between a shipper and connecting carrier, must assume a right of action by the shipper against the connecting carrier for a recovery of an amount not exceeding $5 per hundredweight, it’ is clear that the case proceeded upon the •theory that the shipper had a right to sue such connecting carrier. Remembering, also, that it was the liability to the shipper that was under consideration, it is clear that it was 'this liability to tire shipper that Justice Lurton was referring to when he said :
“The liability of any carrier in the route over which the articles were routed, for the loss or damage, is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act.”
It is absolutely inconceivable that the learned Justice would have gone into an elaborate discussion of the question of limitation in amount upon the carrier’s right of recovery, if, but a few days prior thereto, the court, through himself, had held that, under said Carmack Amend'ent, there could be no' liability
Dissenting Opinion
(dissenting). I differ from my majority Associates only as to 'the effect to be given the decisions of the United States Supreme Court in the Croninger and other cases, construing section 2p as amended by section 7 of the Carmack Amendment.
■Justice MoCO'Y says:
“The opinion in the Croninger case relates solely to the substantive law of liability or cause of action.”
I think the determination of the amount of plaintiff’s recovery under the bill of lading and the valuation therein, discussed in that case, also directly involved a construction of the act as to the remedy. It was held that the liability of the defendant was founded on common-law negligence, but it was also held that the remedy — the right to recover particular damages — was controlled by the contract or bill of lading, which was held to be valid and not in violation of section 20. The remedy was held to be predicated upon the contract for shipment, made obligatory upon both- -the initial and connecting carrier by the same federal statute. But aside from this, section 20 affirmatively declares the liability of the initial carrier to the holder of the shipping receipt, riot only for its own negligence, but also for the negligence of the connecting carrier. By the construction given the contract and the statute, in the federal decisions, the initial 'Carrier is made the principal, in its relations to the
“The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act, as measured by the original contract of shipment, so far as it is valid under the act”— and did not have in mind any “remedy or night of action” saved by the proviso.
Justice Rurton, in the Croninger case, says:
“It (section 20) embraces the subject of the liability of the carrier under -a bill of lading which he must issue. * * * Almost every detail of the subject is covered so completely that 'there can be no rational doubt but that Congress intended to take possession of 'the subject and supersede all state regulations with reference to it.”
The “subject” referred to' is 'the subject-matter of section 20, that which defines and limits the right of contract and the liability both of the initial and the connecting carriers. In Atlantic C. R. R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 35 L. Ed. 167, 31 L. R. A. (N. S.) 7, Justice Rurton said of -this section of the act:
“The rule is adapted to secure the lights of the shipper by securing unity of transportation with unity of responsibility. The regulation is one which also facilitates the remedy of one who sustains a loss, by localizing the responsible carrier.”
This is in effect an adoption of the English rule which is that, upon a through contract, the shipper’s only action for damages -for default, no matter upon what line it occurs, is against the initial carrier. Elliott on Railroads, § 1441, and cases cited. •
It may be noted that under the original interstate commerce act and its amendments prior to the Carmack Act, there was no .compulsory through billing or rating. There was no compulsion
The conclusion reached by Justice McCOY in the majority opinion, and also the concurring opinion of Justice WHITING, is predicated upon the construction placed upon the proviso in section 20:
“That nothing in this section shall deprive any holder of sudh receipt or bill of lading of any remedy or right of action which he has under existing law.”
The majority opinion holds that the words “existing law” means the “general common law as declared by that court”;'that is, by the Supreme Court of the United States. Justice Lurton, in the Croninger case, after discusing both the -carrier’s liability -and the contract, as defined and limited by section 20, discusses the meaning of the words “existing law” in the proviso, as follows-:
“To construe this proviso as preserving, to the holder of any such bill of lading- any right or remedy which he may have had under existing federal law at the -time of -his action gives to 'it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would cause the proviso to destroy the -act itself. One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary- carrier, for a loss or damage incurred u-pon the lin-e of the former. The liability -of such succeeding carrier in the route .would be that imposed by this statute, and for which the first -carrier might have been made liable” '(if the shipper had brought the action against the initial carrier).
Unless the words “federal law” used by Justice Lurton are either ignored or treated as -obiter dictum, it would seem- difficult to reach the conclusion announced in the majority opinion, and avoid a conflict with the federal decisions.
Justice WHITING concedes the necessity of giving weight to the language of Justice Lurton, but.urges that'in the ■ Croninger case he was not discussing the liability of the - connecting carrier to the shipper. It is true that issue was not. directly involved in -that case. But the proviso in section 20, which de
■ “Common law as defined in the -federal courts'” cannot be ■held to be “federal law,” without convicting Justice Eurton of an extraordinarily careless use of ordinary legal term's. There certainly is no federal common law. The common law, “as defined in the federal ,courts,” is nothing more than the common law as it is said to exist in a particular state. Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508. It seems to me therefore that it iis the liability declared in the body of section 20, .and which is held to have its inception, in common-law negligence, to which Justice Eurton refers -in the extracts quoted by Justice WHITING, and not to “existing law” spoken of in- the proviso. If the liability declared in the body of section 20 is based on the “common law as defined in the federal courts,” ■and the proviso is also held to preserve any- “remedy or right of action” under the existing “common- law as defined- in the federal courts,” 'the proviso would be worse than meaningless — it would, as Justice Eurton says, “destroy the act itself.” On the contrary, it would seem that the proviso was inserted out of abundance of caution for the express purpose of saving any other “remedy or ■ right of action” given the shipper by “federal law,” which might otherwise be excluded by implication.
If Justice McCOY’s view that the words “remedy or right of action” relate only to the remedy — or the right to seek relief in court — be correct, then the whole'proviso might well be construed as intended to preserve the right to sue in state as well as federal courts, a right which was recognized' by “existing law,” and which possibly might have been deemed lost, under ¡the rule of exclusion.
Justice WHITING says that the right of the shipper to sue the connecting carrier was not passed upon in the Croninger case because that question was “clearly not raised by the issues of the cause,” and cites the fact that Justice Eurton also wrote
“The sole question before the federal court was as to whether the plaintiff in error, as the final carrier in the route, was entitled to the benefit of 'the stipulations in the» release signed, releasing the primary carrier and all other railroads and transportation companies over whose lines * * * property may pass,” etc.
The care with which the court limits that decision to the one point involved deprives it of the significance assumed by Justice WHITING. That court has always held that the compulsory shipping contract' originates and measures the liability of both the initial and connecting carrier, and that each is entitled to the benefit of its lawful provisions.
Justice WHITING says, however, that the -connecting carrier “of course would not be a party to the shipping contract.” But the statute requires a thorough contract, and this necessarily makes the connecting carrier a party to- it, -and all the decisions give him the benefit o-f its lawful provisions. Justice Lurton meant this when he said:
“The liability of any carrier in the route * * * is that imposed by -this act, as measured by the original contract of shipment. * * *” ■
What liabilities are “imposed by this act?” Justice Lurton thus answers the question:
“It is a liability to any holder of the bill of lading which the primary carrier is required to issue for any loss, damage, or injury to such property, caused by it -or by any connecting carrier, to whom the goods are delivered.”
This is the only liability named in1 the statute in favor of
The statute which, for the benefit of the shipper, creates “unity of transportation with unity of responsibility,” and “facilitates the remedy of one who- sustains a loss, by localizing the responsible carrier,” affords to the shipper benefits wh-ic-h in the legislative mind might well have been deemed to more than offset the one disadvantage urged, -viz., -that in some instances, the 'shipper might be required to- seek his remedy against the initial carrier in- a distant forum.
A review of -the rules governing the right of contract and the liabilities of carriers under such contracts, existing prior to the Carmack Amendment, I think would make clearer the rea