76 S.E. 513 | N.C. | 1912
Lead Opinion
The execution of a bill of lading by a railroad company establishes a contractual relationship between it and the shipper, the carrier agreeing, for a consideration, to transport and to deliver, and the shipper agreeing to pay the consideration. This is the contract. Elliott on Eailroads, vol. 4, sec. 1415. In addition to the obligations contained in the contract,
“He (the common carrier) exercises a public employment, and has duties to the public to perform.” York Co. v. R. R., 70 U. S., 112.
“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.” Munn v. Illinois, 94 U. S.
“Railroads are common carriers, and owe duties to the public.” Joy v. R. R., 138 U. S., 51.
These duties of the common carrier, as such, do not rest upon contract, but are imposed by law (Elliott on Railroads, vol. 4, sec. 1454), and exist independently of contract, having their foundation in the policy of the law. Merritt v. Earle, 29 N. Y., 122.
Among these duties imposed by law, independent of contract, are to carry safely and to deliver within a reasonable time, and a breach thereof is a tort. Peanut Co. v. R. R., 155 N. C., 150, and at p. 164.
In Robinson v. Threadgill, 35 N. C., 41, and in Bond v. Hilton, 44 N. C., 308, Nash, C. J., says: “Where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an action on the case founded on the tort is proper,” and in Williamson v. Dickens, 27 N. C., 265, although the plaintiff could have sued in contract, he was allowed to sue in tort, and thereby avoid the defense of a discharge in bankruptcy.
These cases are approved in Solomon v. Bates, 118 N. C., 315, and the principle was approved by the Supreme Court of
These authorities and many others not only hold .that an action in ‘tort may be maintained for breach of. duty, resulting in damage, although the duty is imposed because of the relationship created by contract, but they go.further, and classify the action as one to recover damages for negligence.
“In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant.” 29 Cyc., 419.
If these views are sound, we come to the consideration of the question of the right of the common carrier to limit its liability by contract.
Prior to 1716, the common carrier was an insurer, and liable for losses occasioned by all causes except the act of God and the King’s enemies, and without power to' limit its responsibility (Fish v. Chapman, 2 Ga., 349, 46 A. D. 393); but this rule has been modified to the extent that the extraordinary liability as an insurer may be limited. 5 Eng. Eul. Cases, 346, note.
The courts have not, however, gone further and permitted the carrier to absolve itself from the consequences of its own negligence. Moulton v. R. R., 31 Minn., 85; R. R. v. Wynns, 88 Tenn., 320; Hudson v. R. R., 92 Iowa, 231; R. R. v. Hall, 124 Ga., 322; Express Co. v. Blackman, 28 Ohio St., 156; R. R. v. Lockwood, 84 U. S., 357; R. R. v. Solan, 169 U. S., 135; Calderon v. Steamship Co., 170 U. S., 272.
The consensus of opinion on this question is stated in Cyc., vol. 6, 385 and 388, as follows: “While considerations of public policy have been potent in determining the courts to recog
In the Phifer case, supra, tbis Court said: “It is well settled tbat no conditions in a common carrier’s bill of lading.can be allowed to exempt it from liability for losses occasioned by tbe negligence or mismanagement of its own servants and employees; for protection against sucb liability is a duty inseparable from tbeir occupation as public agencies. Tbis responsibility cannot be avoided, and a stipulation to tbis effect will not be enforced against sucb as may require tbeir services, even wben by reference inserted in tbe contract of transportation, tbe parties to it in tbis respect not standing upon equal footing.
“Amidst varying adjudications upon tbe extent to wbieb common carriers may limit tbeir liabilities by special agreement, we are disposed to accept tbe guidance of those made in tbe Supreme Court of tbe United States, not only because of tbe great learning and ability of tbe judges wbo constitute it, but tbat there ought to be uniformity in tbe law and its administration in all tbe States, and interstate and local commerce ought to be settled upon a permanent and well understood basis. We shall, therefore, seek instruction from tbat source to aid in arriving at a satisfactory conclusion as to tbe question now before us. Mr. Justice Field remarks, in reference to sucb special limitations: 'Where sucb stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement.’ York Co. v. R. R., 3 Wall., 113. So in R. R. v. Manufacturing Co., 16 Wall., 328, Mr. Justice Day says: 'Whether a carrier, wben charged upon bis common-law responsibility, can discharge himself from it by special contract, is not an open question since tbe cases of Navigation Co. v. Bank, 6 How., 344, and York Co. v. R. R., 3 Wall., 113. In both these cases tbe right of tbe carrier to restrict or diminish bis general liability by special contract, which does not cover losses by negligence
It is upon these principles that we have held that the valuation clause in a bill of lading is inoperative when relied on to exempt from liability for negligence, and cannot diminish the recovery of damages caused by such negligence. Gardner v. R. R., 127 N. C., 293; Everett v. R. R., 138 N. C., 71; Stringfield v. R. R., 152 N. C., 128; Kissenger v. R. R., 152 N. C., 247; Harden v. R. R., 157 N. C., 238.
It has heretofore been recognized that the cases of Jones v. R. R., 148 N. C., 449, and Winslow v. R. R., 151 N. C., 250, are not in harmony with the authorities in this State and elsewhere, and they are now overruled.
We are not inadvertent to the case of Hart v. R. R., 112 U. S., 331, declaring a different rule as to valuation clauses in bills of lading, which has been followed in some States and denied in others; but this authority, while entitled to the greatest respect on account of the high source from which it emanates, is not controlling', as it has been held in the Federal jurisdictions that no Federal question is raised upon the facts presented by this record.
In Latta v. R. R., 172 Fed. Rep., ..., the plaintiff brought suit in a State court of Nebraska to recover damages to a mare and colt, caused by the negligence of the defendant in transporting from one State to another. The case was removed to the Circuit Court of the United States for the District of Nebraska, and there tried, and upon the trial the defendant relied upon
In Hughes v. R. R., 191 U. S., the plaintiff brought suit in the courts of Pennsylvania for negligent injury to a horse, shipped from Albany, N. Y., to Oynwyd, Pa., under a bill of lading containing a valuation clause. A recovery was had in excess of the value in the bill of lading, and upon appeal the judgment rendered was affirmed by the Supreme Court of Pennsylvania. The case was then carried to the Supreme Court of the United States, by writ of error, and that Court-affirmed the judgment of the courts of Pennsylvania, saying in the course of the opinion: “The first error assigned in the common pleas court raised the question as to the law of the. contract. It does not assert that any Federal right was invaded or denied. It seems to have been conceded at the trial that the law of the State of New York, where the contract was made, permitted the making of a contract limiting the liability of the carrier to the agreed valuation in consideration of the lower freight rate for carriage, the shipper having the opportunity to have the larger liability for the value of the goods if the higher rate of freight for carriage was paid. This rule also prevails in the courts of the United States (Hart v. R. R., 112 U. S., 331; 28 L. Ed., 717; 5 Sup. Ct. Rep., 151), wherein it was held that a contract fairly made and signed by the shipper, agreeing on a valuation of the property carried, with a rate of freight based on such valuation, on the condition that the carrier assume liability only to the extent of such agreed valuation in case of loss by the negligence of the carrier, will be upheld as a proper and lawful mode of securing a due ‘proportion between the amount for which the carrier is responsible and the freight received, and of protecting the carrier
In the case before us the action is based on the common law, as in the Hughes case, and we have held that the valuation clause cannot have the effect of diminishing the recovery for damages caused by negligence, following a long line of decisions in this Court, and the same course was followed in the Pennsylvania case; and it would seem that if no Federal question could be found in the Hughes case, none can be found in this, in so far as the determination of the effect of the valuation clause in the bill of lading is concerned.
The defendant contends further, that if it is held that the plaintiff is entitled to recover $285, when the rate of freight was fixed upon the valuation of $100, that this would be a discrimination in favor of the plaintiff and an interference with the Interstate Commerce Act, and further, that Congress having legislated upon the subject-matter of this action, the courts of this State are without jurisdiction.
The principle involved is important, and has not been heretofore decided in this Court, although considered in the Kissenger case, where there is a clear intimation against the contention of the defendant.
We do not question the power of Congress to regulate interstate commerce, nor do we doubt the correctness of the decisions,
These cases, however go no further. In the Abilene case the shipper sought to recover freights which he alleged to be unreasonable, but which were such as had been established and approved under the Interstate Commerce Law; in the Mugg case the shipper sued to recover the difference between a rate quoted to him by the carrier and the regular classified - rate filed and approved by the Commission, which he had paid; in the Pitcairn case, tó compel by mandamus the discontinuance of certain regulations adopted by certain railroad companies for the distribution of ears to' coal mines in a time of car shortage, which regulations were alleged to be in violation of the Interstate Commerce Act; in the Robinson case, a schedule of charges for loading coal into cars was filed and approved by the Commission, under which 50 cents more per ton was charged for loading from a wagon than from a tipple. The plaintiff’s shipment came under the higher rate, and conceiving that the schedule unjustly discriminated between shipments loaded from wagons and those loaded from tipples, he brought action to recover the excess.
We have stated the subject-matter of these cases for the purpose of showing that in each case a clause of the Interstate Commerce Act, or a rule or regulation of the Commission, was directly involved, and we, therefore, conclude that they are not decisive of the question before us..
We will hereafter refer to the Reid case.
We come then to the contention of the defendant, that to permit a recovery of more than $100, when the freight rate was fixed on the basis of that value, would be a discrimination, and that, therefore, the Interstate Commerce Act abrogates the common-law right of action to recover damages.
This being true, the Supreme Court of the United States has laid down the rules by which the contention of the defendant is to be tested.
In the Abilene case, after recognizing the right at common law to recover freight charges in excess of a reasonable rate, and holding that the Commission having approved the rate, the courts could not, in the first instance, inquire into its reasonableness, the Court says: “As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not, in so many words, abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition, we concede that we must be guided by the principle that repeals by implication are not favored, and, indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.”
Again, it has been held in numerous cases that the fact that Congress has created the Interstate Commerce Commission, and given to it a large measure of control over interstate commerce, does not deprive the State of the right to enforce laws which may incidentally affect commerce, in the absence of action by Congress or the Commission as to the particular matter to be inquired of. A number of instances of such laws are collected in Cleveland C. C. and St. L. R. Co. v. Illinois, 177 U. S., 514, and the Court there says: “Few classes of cases have become more common in recent years than those wherein the police power of the State over the vehicles of interstate commerce has
The same rule was applied in Missouri Pac. Ry. v. Larabee Mills, 211 U. S., 612.
The expressions in Southern Ry. Co. v. Reid, supra, that Congress having taken'possession of the field — having taken control — are relied on to sustain the argument that this rule has been extended, and that now the State has no power to enforce any law which may remotely affect interstate commerce; but the language referred to must be read with the context, and when this is done it will be seen that the principle is sustained.
In the Reid case the Court quotes with approval the following from the Missouri Railway case, supra: “In other words, the mere grant by Congress to the Commission of certain National powers in respect to interstate commerce does not of itself and in the absence of action by the Commission interfere with the authority of the State to make those regulations conducive to the welfare and convenience of its citizens. . . . Until specific action by Congress or the Commission, the control of the State over those incidental matters remains undisturbed,” and then says: “The duty which was enforced in the State court was the duty of a railroad company engaged in interstate commerce to afford equal local switching service to its shippers, notwithstanding the cars concerning which the service was claimed were eventually to be engaged in interstate commerce. This duty was declared (p. 624) to be a common-law duty which the State might, ‘at least, in the absence of Congressional action, compel the carrier to discharge.’ The principle of that case, therefore, requires us to find specific action
The decision in the Reid case was upon the ground that, “By the specific provisions of the act to regulate commerce, as amended, Congress has taken control of rate making and charging for interstate shipments, and in that respect such provisions supersede State statutes on the same subject; and that a statute of North Carolina requiring common carriers to transport freight as soon as received to interstate points under penalties for failure, conflicts with the requirement of section 2 of the Hepburn Act of 29 July, 1906, ch: 3591, 34 Stat., 584, forbidding transportation until rates had been fixed and published, and is therefore unenforcible.”
Tested by these rules, the right of action of the plaintiff, as it existed at common law, is unimpaired, unless its recognition by the courts would render the act to regulate commerce nugatory, or unless Congress has acted on the subject-matter of this controversy.
Congress has legislated and the Commission has made rules and regulations to compel the performance of duty, and not for the purpose of excusing negligent conduct. The rates prescribed are to afford transporting property safely, and with reasonable care, and are not based upon the assumption that the carrier will not perform its duty, and neither Congress nor the Commission has provided a remedy for negligence, nor purported to relieve from its consequences.
A jury has found in this action that the property of the plaintiff has been damaged $285 by the negligence of the defendant, and if he cannot recover that sum in this action, he is without remedy. He cannot go to Congress, nor can he go to the Commission; and if the contention of the defendant is sustained, an act of Congress designed to regulate commerce and the rules of a commission created to administer its provisions will have the effect of reducing his claim to $100.
Conceding that the right of action exists at common law, it ' does not render the act of Congress nugatory to enforce it, and
Tbe implication we are asked to infer compels us to write into tbe act of Congress words that cannot be found there, and words which, if written in tbe bill of lading itself, would be void, according to our authorities, to wit, “that in consideration of tbe rate paid tbe carrier shall not be liable for negligence.”
Tbe case of Hughes v. R. R., 191 U. S., 477, seems to be directly in point against both contentions of tbe defendant. In that case tbe plaintiff brought bis action in tbe court of Pennsylvania to recover damages for negligent injury to a horse shipped from New York to Pennsylvania, and tbe defendant relied on tbe valuation clause in tbe bill of lading, and also urged that to permit a recovery for a larger amount than that named would be in conflict with tbe Interstate Commerce Act. Tbe Supreme Court of Pennsylvania held against tbe defendant on both points, and rendered judgment in favor of tbe plaintiff for tbe full amount of bis damages, and this judgment was affirmed by tbe Supreme Court of tbe United States. In tbe course of the opinion, tbe Court says: “Upon the authority of Missouri, K. and T. R. Co. v. Elliott, 184 U. S., 533; 46 L. Ed., 764; 22 Sup. Ct. Rep., 446, it may be admitted that tbe question of tbe decision of tbe State court being in contravention of tbe legislation of Congress to regulate interstate commerce was sufficiently made, and tbe adverse decision to tbe party claiming tbe benefit of that act gives rise to tbe right of review here. In refusing to limit tbe recovery to tbe valuation agreed upon, did tbe State court deny to tbe company a right or privilege secured by tbe interstate commerce law? It may be assumed that under tbe broad power conferred upon Congress over interstate commerce, as defined in repeated decisions of this Court, it would be lawful for that body to make provision as to contracts for interstate carriage, permitting tbe carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. But upon examination of tbe terms of tbe law relied upon, we fail to find any such provision therein.' Tbe sections of tbe interstate commerce law
This case was approved in W. U. Tel. Co. v. Milling Co., 218 U. S., 406, in which, after holding that intercourse between the States by telegraph is interstate commerce, a statute of Michigan was sustained declaring that “telegraph companies shall be liable for any mistakes, errors, or delays in the transmission or delivery, or for the nondelivery'of any repeated or nonrepeated message, in damages to the amount which such person or persons may sustain by reason of the mistakes, errors, or delays in the transmission or delivery, due to the negligence of such telegraph company or its agents, to be recovered with the costs of suit by the person or persons sustaining such damage,” although on the face of the telegram there was a stipulation that the company should not be liable for the nondelivery of an unrepeated message beyond the amount paid for the telegram, the Court saying in conclusion: “The telegraph company in the case at bar surely owed the obligation to the milling company to not only transmit the message, but to deliver it. For the failure of the latter it sought to limit its responsibility, to make the measure of its default not the full and natural consequence of the breach of its obligation, but the mere
Tbe Supreme Court of South Carolina has recently decided both questions presented by tbis appeal against tbe contention of tbe defendant. Elliott v. R. R., 75 S. E. R., 886.
There is also authority for tbe position that tbe Interstate Commerce Act, as amended in 1906, instead of taking away tbe right of action of tbe plaintiff, preserves it.
In Latta v. R. R., 172 Fed. Rep., 850, tbe plaintiff sued to recover damages for injuries caused by. negligence to a mare and colt, shipped from Nebraska to Iowa, under a bill'of lading containing a valuation clause, and tbe action was removed to tbe Circuit Court of the United States. Upon tbe trial, tbe defendant relied on tbe clause in tbe bill of lading limiting tbe amount of recovery, and it was also shown “that tbe rate of $24.38 charged by tbe defendant for tbe transportation of tbe animals mentioned was its regular tariff based upon tbe valuation stated in tbe contract. It was also conceded at tbe trial that said tariff rate bad been filed with 'the Interstate Commerce Commission, and published as required by law, and that tbe rules, regulations, and tariffs of tbe defendant on file with tbe Interstate Commerce Commission disclosed that tbe above-named rate applied to tbe limited liability contract in use by .the company for tbe transportation of live stock.” Upon appeal, tbe Circuit Court of Appeals held that the plaintiff bad tbe right to recover tbe full amount of bis damages, and that tbe Interstate Commerce Act, instead of taking away tbis right, preserved it, tbe Court saying in reference to' tbe last question: “It is claimed, however, that Congress has legislated upon tbe very subject now under discussion, and that in consequence thereof tbe law of Nebraska, so> far asUt is sought to enforce tbe same against tbe provisions of a contract in relation to interstate commerce, is inoperative. In tbis connection our
We conclude, upon reason and authority:
(1) That under the common law as administered in this State, the valuation clause in a bill of lading does not relieve from the consequences of negligence.
(2) That if the common law was different, the Legislature of the State would have the power to pass an act providing that such a clause should not relieve against negligence.
(3) That the Supreme Court of the United States recognizes and follows the decisions of the courts of the State on this question, in cases originating in the State courts, whether based on the common law or statute, although it would hold otherwise in cases originating in the Federal jurisdiction.
'(4) That Congress has not, in the act to regulate commerce, purported to relieve against negligence.
(5) That Congress having failed to act in .this particular, this State may administer its own laws and enforce its settled policy.
(6) There being no express language in the act of Congress abrogating the common-law right of action of the plaintiff, if abrogated at all, it must be by implication.
(7) That the abrogation of the right will not be implied, unless to permit it to exist would render the act of Congress nugatory.
(8) That the enforcement of the right of action is not in conflict with the terms or purpose of the act of Congress, and therefore its abrogation will not be implied.
(9) That if Congress has legislated upon the matter in controversy, the right of action of the plaintiff is preserved by the proviso in the act.
We are, therefore, of opinion there is no error.
No error.
Concurrence Opinion
concurring: No question as to rates, nor as to the power of the Interstate Commerce Commission to regu
The carrier can relieve itself by contract, in proper cases and for a reasonable consideration, from its liability as insurer, but it cannot stipulate to be relieved either in whole or in part from liability to pay for damages caused by its negligence.
Dissenting Opinion
dissenting: The fact that Congressional legislation on matters relating to interstate commerce may interfere with the exercise of the police power by the State, or • may contravene the public policy of the State, is not sufficient to prevent the operation of such legislation. The Federal statute is supreme. Therefore, if Congress has, by its enactments, covered the subject of rate making and charging in its relation to interstate commerce, the right 'of a State, through either its Legislature or its courts, to regulate or interfere with such rate making and charging 'is destroyed. • This is fundamental, and I do1 not understand it to be controverted by the opinion of the Court. That opinion seems to ’be based upon the view that Congress has not acted upon the subject, and, therefore, the State courts have the right to apply to the situation the law in force in the State. T am forced by the decisions of the Supreme Court of the United States to reach a different conclusion.
It has recently been held by that Court that' Congress has completely taken control of the subject of 'rate making and charging by the'provisions of the act to regulate commerce and the amendments thereto. Southern Railway Co. v. Reid, 222 U. S., 424. Upon the authority of that case inhibitive Congressional legislation is not required to prevent the application of State legislation upon incidental matters relating to inter
It is not denied that Congress has so far conferred upon the Interstate Commerce Commission the power to regulate interstate rates as to destroy the jurisdiction of the State courts to pass upon the reasonableness of such rates. The plain language of the United States Supreme Court in the Abilene Cotton Oil Co. case, 204 U. S., 426, placed that matter beyond dispute. But it is asserted that although a State court cannot by its action directly regulate the rate to be charged for an interstate shipment, it can destroy the- relation of the value of shipment to the rate charged, as fixed by the tariffs on file with the Interstate Commerce Commission, without encroaching upon the power vested in the Commission by the act to regulate commerce. I think this is doing indirectly the very thing prohibited by the Abilene case. It is not sufficient, to sustain that position, to- say, in this case, that the action is one for negligence, and that the plaintiff has been damaged $285, and if he cannot recover that sum he is without remedy. He has the remedy which he has contracted to accept and which was made the basis of the rate on which his shipment moved. He agreed for a valuable consideration that his remedy should be restricted
Congress has conferred upon tbe Interstate Commerce Commission tbe power to regulate rate making in its application to
We must assume that the rates and regulations on file with the Interstate Commerce Commission are reasonable until determined to be unreasonable by the Commission (Erie Railroad Co. v. Lumber Co., 75 N. J. Law, 878), and it is the duty of the State court to enforce such rates and regulations. Abilene Cotton Oil Co. case, supra. It was, therefore, the duty of the Court to restrict the plaintiff’s recovery in this action to the valuation which was made the basis of the rate filed with the Commission.
In Poor Grain Co. v. C. B. and Q. Ry. Co., 12 I. C. C. Rep., 418, Commissioner Harlan says: “When once lawfully published, a rate so long as it remains uncaneeled is as fixed and unalterable, either by the shipper or the carrier, as if the particular rate had been established by a special act of Congress. When regularly published, it is no longer the rate imposed by the carrier, but the rate imposed by the law.”
In the present case the carrier charged the shipper $170 to transport a car-load of twenty-six mules from East St. Louis, Mo., to Baleigh, N. C. The rate was based upon the declared valuation of $100 as provided by the tariff. If the shipper had declared a valuation of $285, the valuation of the mule as fixed by the jury, the rate' according to the tariff would have been $238 for the car-load. If the judgment is sustained, the plain
In the Abilene Cotton Oil Co. case the purposes of the act to regulate commerce are set forth, and Chief Justice White says: “It is apparent that the means by which these great purposes are to be accomplished was by placing upon all carriers the positive duty to establish schedules of reasonable rates which should have a reasonable application to all, and which should not be departed from so long as the established schedule remained unaltered in the manner provided by law.” After citing-cases, the learned Chief Justice continues: “When the general scope of the act is enlightened by the considerations just stated, it becomes manifest that there is not only a relation, but an indissoluble unity, between the provision for the establishment and maintenance of rates until corrected in accordance with the statute and prohibitions against preference and discrimination.” One of the important purposes of the act is to insure uniformity and prevent discrimination in freight rates, and certainly any action by the State through its courts which results in destroying such uniformity and creating a discrimination is violative of the act. Uniformity in the application of the established rate will be destroyed if the State courts shall have the power to disturb the relation between the declared value of the article and the rate. A shipper can declare a value of $100 and secure the low rate based upon that value. When the shipment reaches its
Tbis judgment forces a discrimination in favor of shippers whose animals are transported to North Carolina, and against tbe shipper whose animals are shipped to those States in which the valuation fixed by the contract of shipment is upheld. If North Carolina is the destination of the shipment, the shipper can declare a value of $100, secure the low rate, and recover ten times that amount if he can prove such damage. The shipper who selects one of the States referred to as the destination of his shipment will be forced to accept $100 for loss or damage to each animal regardless of the extent of his loss. The same result is brought about if the validity of the contract is to be determined by the law of the place of shipment. The amount of damages will be determined by the rules in force in the various States. Elliot’t on Railroads, sec. 1510; 6 Cyc., 398. If this condition is permitted to exist uniformity will be destroyed and discrimination will take its place.
In Armour Packing Co. v. United States, 209 U. S., 57, Mr. Justice Day, dealing with a violation of the act by carrying out a contract for a rate after the rate had been changed by publication of a higher rate, said: “The Elkins act proceeded upon broad lines and was evidently intended to effectuate the purpose of Congress to require that all shippers should be treated alike, and that the only rate charged to any shipper for the same service under the samé conditions should be the one established, published, and posted as required by law. It is not so much the particular form by which, or the motive for which, this purpose was accomplished, but the intention was to prohibit any and all means that might be resorted to to obtain or receive concessions and rebates from the fixed rates, duly posted and published.”
The language of Mr. Justice Van Devanter in the case of Robertson v. B. and O. R. R. Co., 222 U. S., 506, leaves no
In addition to the authorities already cited, the following cases support the statement that Congress has conferred upon the Interstate Commerce Commission authority to regulate commerce, including the right to fix and approve rates and regulations governing such rates: T. and P. Ry. v. Mugg, 202 U. S., 242; McNeill v. Southern Ry., 202 U. S., 543; B. and O. R. R. v. Pitcairn Coal Co., 215 U. S., 481; Robinson v. B. and O. R. R., 222 U. S., 506; Chicago and A. R. Co. v. Kirby, U. S. S. C. Advance Sheets, 15 July, 1912.
In T. and P. Ry. v. Mugg, 98 Tex., 353, it was attempted to base a right of recovery upon the misrepresentation of an agent in quoting an interstate rate. The Texas court upheld the right to recover damages, notwithstanding the fact that the rate quoted was the rate published and on file with the Interstate Commerce Commission. The decision was put upon the ground that the question of rates was not involved, and that the action was based upon the misstatement of the agent, which induced
The Hughes case, 191 U. S., 411, is said to be an authority in support of the position that Congress has not legislated on the subject-matter of this action. That decision was rendered in 1902. I have examined the act to regulate commerce as it was in force at’that time, and find that it has since been extensively amended, and the power of the Interstate Commerce Oom- . mission has been enlarged. This was accomplished -by amendments in 1906 and in 1910. The enlargement of the scope of the act and the recent decisions of the Supreme Court of the United States, considered in connection with the facts of this case, lead me to conclude that the Hughes case is not to be regarded as authority against the position that Congress has now taken control of the subject of rate making and charging, and conferred upon the Interstate Commerce Commission the power to pass upon questions relating' to that subject. Each amendment of the act was made with the view of extending the jurisdiction of the Commission over interstate commerce, and the language of the entire act leaves no doubt of the purpose of Congress to have one tribunal to pass upon the intricate problems of rate making. In this way alone can uniformity be secured and discrimination prevented.
The scope of the power of the Interstate Commerce Commission is illustrated.by section 15 of the act, by the provisions of which the Commission is given authority, among other things, to investigate any “regulations or practices whatsoever of such carrier or carriers subject to the provisions of this act”- as are alleged to be “unjust and unreasonable or unjustly discriminatory, or unduly preferential or prejudicial or otherwise in violation of any of the provisions of this act”; and “the Commission is hereby authorized and empowered to determine and prescribe . . . what individual or joint classification,' regulation, or practice is just, fair, and reasonable, to be thereafter followed, and to make an order that the carrier or carriers shall cease or desist from such violation to the extent to which the Commission finds the same to exist.”
It is said in tbe opinion of tbe Court that the effect of tbe Hepburn Act is to prohibit agreements fixing tbe value of tbe article shipped and restricting liability to such value in case of loss or damage by negligence. Tbe Supreme Courts of Massachusetts, New York, and New Jersey have taken tbe opposite view. Tbe cases are well considered, and I can add nothing to what is said by tbe learned judges of those courts. Bernard v. Express Co., (Mass.) 91 N. E., 325; Greenwald v. Barrett, 199 N. Y., 170; same case, 115 N. Y. Supp., 311; Travis v. Wells-Fargo Co., 79 N. J. Law, 83.
In Travis v. Wells-Fargo Co. it is held: “In an action against a common carrier for goods lost in transit, a’ receipt was put in evidence, in which receipt tbe defendant limited its liability to tbe sum of $50, unless a greater value was stated by tbe shipper. Tbe trial court held that section 20 of tbe Interstate Commerce Act of 1906 (tbe Hepburn Act) prohibited a
I conclude from tbe authorities referred to tbat Congress has conferred upon tbe Interstate Commerce Commission tbe power to regulate rates on interstate commerce; tbat a rate established and on file with tbe Commission is presumed to be reasonable until declared by tbe Commission to be otherwise; tbat sucb rate must be strictly adhered to by tbe shipper and carrier as long as it remains in force; and, finally, tbat a State court is without jurisdiction to interfere directly or indirectly with an interstate rate properly established and published and on file with tbe Interstate Commerce Commission as provided by tbe act to regulate commerce.
Dissenting Opinion
dissenting: I concur in tbe dissenting opinion of Justice Brown. Tbe Court now reverses its former rulings in Jones v. R. R., 148 N. C., 580 (decided by a unanimous Court), and Winslow v. R. R., 151 N. C., 250, and, as I think, Gardner v. R. R., 127 N. C., 293, wbicb cases are clearly sustained, in principle, at least, by Mitchell v. R. R., 124 N. C., 246; Selby v. R. R., 113 N. C., 588, and Everett v. R. R., 138 N. C., 71, in tbe last of wbicb cases Justice Hoke. said, when addressing himself to tbis subject: “Sucb agreements are upheld where, tbe carrier being without knowledge or notice of tbe true value, tbe parties agree upon a valuation of tbe particular goods shipped, approximating the average value of ordinary goods of like kind, and make sucb valuation tbe basis of a just and reasonable shipping rate.” Tbe cases cited by tbe Court,
In York Co. v. R. R., 70 U. S. (3 Wall.), 107, tke same Court keld tkat “A common carrier may prescribe regulations to protect kimself against imposition and fraud, and fix a rate of charges proportionate to tke magnitude of tke risks he may have to encounter.” And in R. R. v. Lockwood, 84 U. S. (18 Wall.), 357, tke Court, while recognizing fully tke general rule tkat a common carrier cannot lawfully stipulate for exemption from responsibility if tke exemption is not just and reasonable, and tkat it is not so for a common carrier to stipulate for kis exemption from responsibility for tke negligence either of kim-self or kis servants, nevertheless decided it to be “just and reasonable tkat he should not be keld responsible, in law, for losses happening by sheer accident, nor chargeable for valuable articles liable to be damaged, unless apprized of their character or value.”
We have referred to tke law as thus stated by courts entitled to our highest respect, and whose decision on any particular question of general law, though not conclusive upon us, is not to be lightly considered or disregarded, but should have tke greatest weight with us in deciding the same or similar questions, for tke purpose of showing clearly tke difference between Kime v. R. R. and this case, and it is emphasized and accentuated in this passage taken from tke opinion of Justice Blatchford in Hart v. R. R., supra: “Tke limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from tke carrier tke measure of care due to tke value agreed on. Tke carrier is bound to respond in tkat value for negligence. Tke compensation for carriage is based on tkat value. Tke shipper is stopped from saying tkat tke value is greater. Tke articles have no greater value, for tke purposes of tke contract of transportation, between tke parties to tkat contract. Tke carrier must respond for negligence up to tkat value. It is just and reasonable tkat suck a contract, fairly entered into, be upheld. There is no
In Kime’s case we were discussing the right of the carrier to limit his liability, at common law, as an insurer, and also for negligence. We held that he might rid himself of his liability as insurer by notice given in advance to the shipper, if the agreement made in response thereto is reasonable and founded upon a fair consideration and conforms to the sound public policy by which the obligations of the carrier to the public are settled (6 Cyc., 396), but that he cannot stipulate for an exemption from responsibility for a loss of goods caused by his negligence in their transportation. The question decided in this case was not presented, as the judge instructed the jury, in Kime’s case, that the stipulation in the bill of lading, that the carrier assumed liability only to the extent of the agreed valuation, which was $100 for each horse in the car-load, was valid, and that they should assess plaintiff’s damages accordingly. He did not appeal, and therefore could not avail himself in this Court of any error in the charge, if there was any, nor could defendant, as it was in its favor, and I then thought, and still think, that there was none. But the question as to the validity of the clause which provides • for the payment of a stipulated amount or the agreed value of the goods was not involved in that case at all, the only issue being as to the negligent conduct of the defendant railroad company in the carriage of the horses from Richmond, Ya., to Burlington, N. C., and we held that the stipulation in the bill of lading as to the examination of the car by the shipper did not so far limit the responsibility of the defendant as to relieve it from the exercise of due and proper care in the transportation, and that loading and transporting the horses in a close car, without any ventilation, and almost air-tight, which caused them to be smothered, so that they staggered as they were being unloaded at Burlington and had to be assisted from the car, was itself gross, if not wanton,
I have said this much in the case, not for the purpose of vindicating our former opinions at the present time, but tó show how unlike this case is that of Kime v. R. R., decided at this term, and in which, at its request, I expressed the views and stated the conclusions of the Court. I may, perhaps, have occasion to discuss the other question later, when I will attempt to show, by reason and, as I think, by the great weight of authority, that the view we formerly entertained is the correct one. Nor do I intend, now, to dwell upon the remaining question, viz., whether by the recent amendments to- the Interstate Commerce Act the Congress has not made the question of fixing the rate by an agreed valuation, or upon such a valuation as its basis, one of Federal law, so that when the schedules are filed with the Interstate Commerce Commission that body is vested with the power to determine as to the reasonableness and validity of the rates, it having actually decided that such an agreement as is now in question is a valid one and that a lawful rate is 'established thereby. I am thoroughly satisfied, in all these respects, with the able and learned opinion of Justice Brown, in which I have concurred, and which to my mind presents unanswerable arguments in support of our views. If it is a Federal question, the decision of the Court in Hart v. R. R. and in Hughes v. Railway, cited in the principal opinion in this case, in which the Court adheres to its former rulings, are controlling upon us, however much we may differ with that Court in its reasoning and conclusion.
Lead Opinion
BROWN and WALKER, JJ., dissenting. This action was originally brought by the plaintiff against the Seaboard Air Line Railway and the Louisville and Nashville Railroad Company to recover $310 for the death of a mule alleged to have been caused by the negligence of the defendants in the course of transportation from East St. Louis, Ill., to Raleigh, N.C. The mule in question was one of a car-load of twenty-six shipped by the Maxwell-Crouch Mule Company to the plaintiff company on 3 March, 1911. The mules arrived at Raleigh 8 March, 1911. The injury to the mule was apparent when he was unloaded, and he was sent to the stable of a veterinary surgeon by the defendant's agent. A few days after being sent to the stable, the mule died.
At the trial the court instructed the jury that there was no evidence of negligence on the part of the Louisville and Nashville Railroad Company, and the verdict rendered placed the responsibility for the mule's death entirely on the Seaboard Air Line Railway.
The defendant pleaded the provisions of the Act to Regulate Commerce, as amended, as restricting the plaintiff's right to recover more than $100 for the death of this mule, and offered in evidence tariffs and classifications on file with the Interstate Commerce Commission, from which it appeared that the rate charged and the valuation fixed in the contract upon which this shipment moved are in accordance with the published tariff rate. The defendants also pleaded the provisions of the contract of shipment, fixing the value of the mule at $100, as a bar to plaintiff's right to recover more than that amount under the law as declared by the Supreme Court of North Carolina.
The contract recited a rate of $170 per car, and contained this provision: "Should damage occur for which the said carrier may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed . . . for a horse or mule $100 . . . which amounts it is agreed are as much as such animals as are herein agreed to be transported are worth." *179
The defendant also offered evidence tending to prove that the rate on horses and mules from National Stock Yards, Ill., to Raleigh, (219) N.C. via Louisville and Nashville Railroad Company and Seaboard Air Line, is $170 per standard car, plus $1 bed charges and feed charges en route, when regular live-stock contract is executed, which limits liability of carrier not to exceed $100 per animal in case of loss or damage. In case the shipper desires not to accept contract limiting liability, he can increase the valuation of the animals, but for every increase of 100 per cent or fraction thereof in the value of his animals the freight rate is increased 20 per cent more on the car.
The jury returned the following verdict:
1. Was plaintiff's mule injured by the negligence of the defendant Louisville and Nashville Railroad Company, as alleged in the complaint? Answer: No.
2. Was plaintiff's mule injured by the negligence of the defendant Seaboard Air Line Railway, as alleged in the complaint? Answer: Yes.
3. Did the plaintiff comply with the contract of shipment as to the giving of notice to the railroad company (Seaboard) as to his claim for damages? Answer: Yes.
4. What damages, if any, is plaintiff entitled to recover? Answer: $285.
His Honor, being of opinion that the clause in the bill of lading limiting the value to $100 did not prevent the recovery of the damages sustained by negligence, and that to permit such a recovery did not interfere with the Act to Regulate Interstate Commerce, rendered judgment in favor of the plaintiff for $285 and costs, and the defendant excepted and appealed.
The execution of a bill of lading by a railroad company establishes a contractual relationship between it and the shipper, the carrier agreeing, for a consideration, to transport and to deliver, and the shipper agreeing to pay the consideration. This is the contract. 4 Elliott on Railroads, sec. 1415. In addition to the obligations contained in the contract, the law imposes upon the company other obligations and duties, and justifies its right to do so because the (220) company is a creation of the law, enjoys a virtual monopoly of the carriage of freight within a certain distance, and exercises the right of eminent domain, which can only be conferred in consideration of public service. Branch v. R. R.,
"He (the common carrier) exercises a public employment, and has duties to the public to perform." York Co. v. R. R.,
"Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U.S.
"Railroads are common carriers, and owe duties to the public." Joy v. R.R.,
These duties of the common carrier, as such, do not rest upon contract, but are imposed by law (Elliott on Railroads, vol. 4, sec. 1454), and exist independently of contract, having their foundation in the policy of the law. Merritt v. Earle,
Among these duties imposed by law, independent of contract, are to carry safely and to deliver within a reasonable time, and a breach thereof is a tort. Peanut Co. v. R. R.,
In Robinson v. Threadgill,
These cases are approved in Solomon v. Bates,
These authorities and many others not only hold that an action in tort may be maintained for breach of duty, resulting in damage, although the duty is imposed because of the relationship created by contract, but they go further, and classify the action as one to recover damages for negligence.
"In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part *181 of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant." 29 Cyc., 419.
If these views are sound, we come to the consideration of the question of the right of the common carrier to limit its liability by contract.
Prior to 1776, the common carrier was an insurer, and liable for losses occasioned by all causes except the act of God and the King's enemies, and without power to limit its responsibility (Fish v. Chapman,
The courts have not, however, gone further and permitted the carrier to absolve itself from the consequences of its own negligence. Moulton v. R.R.,
The consensus of opinion on this question is stated in Cyc., vol. 6, 385 and 388, as follows: "While considerations of public policy have been potent in determining the courts to recognize a rule of liability in the case of common carriers much stricter than that recognized as applying in the case of ordinary bailees, the courts have not (222) thought it necessary to deny the parties to a contract of carriage the right to exonerate the carrier from his extraordinary liability, and the general proposition has been almost universally recognized that by special agreement, or by notice to the shipper, acquiesced in by him, the common carrier may limit his liability to that of a private carrier. It is, therefore, stated as a general proposition in many cases that the common carrier may by contract limit his liability, except for damages or loss resulting from the negligence of the carrier or his agents or servants"; and on page 388: "The proposition amplified in the last subdivision, that a common carrier may by contract reduce his liability to that of a bailee for hire, is not to be extended so as to authorize him as such bailee for hire to exempt himself from liability for negligence. Whatever may be the rule as to ordinary bailees, it is well settled that it is contrary to public policy to allow a common carrier to relieve himself in any capacity from liability for negligence or misconduct. A different conclusion has been reached by the New York courts, and it has been held in a line of cases which are out of harmony with the great current of authority, that inasmuch as the shipper has a right to insist on the common-law liability of the carrier if he sees fit, a contract exempting the carrier from liability for his own negligence will be sustained. Outside of New York the current of authorities is almost unbroken *182
that for reasons of public policy carriers cannot exempt themselves by any contract, notice, or stipulation from liability for the consequences of their own negligence." The author, Judge McClain, of the Supreme Court of Iowa, comments on the New York cases in the note, and says: "Even the courts of New York regard the rule as so anomalous that they qualify it by the further rule, that a general contract of exemption from loss, even from loss of a particular description, will not be interpreted as an exemption from loss due to the carrier's own negligence, unless it is expressly so stipulated. Wilson v. R. R.,
(223) It is the settled policy of this State that the common carrier cannot, by contract, exempt itself from liability, partial or total, caused by negligence. Phifer v. R. R.,
In the Phifer case, supra, this Court said: "It is well settled that no conditions in a common carrier's bill of lading can be allowed to exempt it from liability for losses occasioned by the negligence or mismanagement of its own servants and employees; for protection against such liability is a duty inseparable from their occupation as public agencies. This responsibility cannot be avoided, and a stipulation to this effect will not be enforced against such as may require their services, even when by reference inserted in the contract of transportation, the parties to it in this respect not standing upon equal footing.
"Amidst varying adjudications upon the extent to which common carriers may limit their liabilities by special agreement, we are disposed to accept the guidance of those made in the Supreme Court of the United States, not only because of the great learning and ability of the judges who constitute it, but that there ought to be uniformity in the law and its administration in all the States, and interstate and local commerce ought to be settled upon a permanent and well understood basis. We shall, therefore, seek instruction from that source to aid in arriving at a satisfactory conclusion as to the question now before us. Mr. Justice Field remarks, in reference to such special limitations: `Where such stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement.' York Co. v. R.R., 3 Wall., 113. So in R. R. v. Mfg. Co., 16 Wall., 328, Mr. Justice Day says: `Whether a carrier, when charged upon his common-law responsibility, can discharge himself from it by special contract, is not an open question since Navigation Co. v. Bank, 6 How., 344, and York Co. v. R. R., 3 Wall., 113. In both these cases the right of the carrier to restrict or diminish his general liability by special contract, which does not cover losses by *183 negligence or misconduct, received the sanction of this Court.' After (224) a full and elaborate examination of the authorities, Mr. JusticeBradley announces the result in these words: `(1) A common carrier cannot lawfully stipulate for exemption from responsibility where such exemption is not just and reasonable in the eyes of the law. (2) It is not just and reasonable in the eyes of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his agents.' " And in the McConnell case: "The defendant could not, by any stipulation in the bill of lading, contract to limit its liability for negligence in transporting goods which it receives for carriage."
It is upon these principles that we have held that the valuation clause in a bill of lading is inoperative when relied on to exempt from liability for negligence, and cannot diminish the recovery of damages caused by such negligence. Gardner v. R. R.,
It has heretofore been recognized that Jones v. R. R.,
We are not inadvertent to Hart v. R. R.,
In Latta v. R. R., 172 F. 850, the plaintiff brought suit in a State court of Nebraska to recover damages to a mare and colt, caused by the negligence of the defendant in transporting from one State to another. The case was removed to the Circuit Court of the United States for the District of Nebraska, and there tried, and upon the trial the defendant relied upon the valuation clause in a bill of lading, limiting the recovery to $220. The Circuit Court sustained the contention of (225) the defendant, but on appeal the Circuit Court of Appeals reversed this holding upon the ground that the Supreme Court of Nebraska had decided that the valuation clause was void under the Constitution of Nebraska, providing that "The liability of railroad corporations as common carriers shall never be limited," and that the Federal court was bound by this construction.
In Hughes v. R. R., 191 N. S., the plaintiff brought suit in the courts of Pennsylvania for negligent injury to a horse, shipped from Albany, N.Y., to Cynwyd, Pa., under a bill of lading containing a valuation *184
clause. A recovery was had in excess of the value in the bill of lading, and upon appeal the judgment rendered was affirmed by the Supreme Court of Pennsylvania. The case was then carried to the Supreme Court of the United States, by writ of error, and that Court affirmed the judgment of the courts of Pennsylvania, saying in the course of the opinion: "The first error assigned in the common pleas court raised the question as to the law of the contract. It does not assert that any Federal right was invaded or denied. It seems to have been conceded at the trial that the law of the State of New York, where the contract was made, permitted the making of a contract limiting the liability of the carrier to the agreed valuation in consideration of the lower freight rate for carriage, the shipper having the opportunity to have the larger liability for the value of the goods if the higher rate of freight for carriage was paid. This rule also prevails in the courts of the United States (Hart v. R. R.,
In the case before us the action is based on the common law, as in theHughes case, and we have held that the valuation clause cannot have the effect of diminishing the recovery for damages caused by negligence, following a long line of decisions in this Court, and the same course was followed in the Pennsylvania case; and it would seem that if no *185 Federal question could be found in the Hughes case, none can be found in this, in so far as the determination of the effect of the valuation clause in the bill of lading is concerned.
The defendant contends further, that if it is held that the plaintiff is entitled to recover $285, when the rate of freight was fixed upon the valuation of $100, that this would be a discrimination in favor of the plaintiff and an interference with the Interstate Commerce Act, and further, that Congress having legislated upon the subject-matter of this action, the courts of this State are without jurisdiction.
The principle involved is important, and has not been heretofore decided in this Court, although considered in the Kissenger case, where there is a clear intimation against the contention of the defendant.
We do not question the power of Congress to regulate interstate commerce, nor do we doubt the correctness of the decisions, chiefly relied on, that where Congress, acting within the power conferred by the Constitution, has legislated with reference to the matter involved (227) in the litigation, the legislation of Congress is exclusive, and the courts of the State are without jurisdiction. R. R. v. Oil Co.,
These cases, however, go no further. In the Oil Co. case the shipper sought to recover freights which he alleged to be unreasonable, but which were such as had been established and approved under the Interstate Commerce Law; in the Mugg case the shipper sued to recover the difference between a rate quoted to him by the carrier and the regular classified rate filed and approved by the Commission, which he had paid; in the Pitcairncase, to compel by mandamus the discontinuance of certain regulations adopted by certain railroad companies for the distribution of cars to coal mines in a time of car shortage, which regulations were alleged to be in violation of the Interstate Commerce Act; in the Robinson case, a schedule of charges for loading coal into cars was filed and approved by the Commission, under which 50 cents more per ton was charged for loading from a wagon than from a tipple. The plaintiff's shipment came under the higher rate, and conceiving that the schedule unjustly discriminated between shipments loaded from wagons and those loaded from tipples, he brought action to recover the excess.
We have stated the subject-matter of these cases for the purpose of showing that in each case a clause of the Interstate Commerce Act, or a rule or regulation of the Commission, was directly involved, and we, therefore, conclude that they are not decisive of the question before us.
We will hereafter refer to the Reid case.
We come then to the contention of the defendant, that to permit a recovery of more than $100, when the freight rate was fixed on the basis *186 of that value, would be a discrimination, and that, therefore, the Interstate Commerce Act abrogates the common-law right of action to recover damages.
If we turn to the act itself, no language can be found which (228) in express terms purports to have this effect, and the defendant must rely upon an abrogation of the right of action by implication.
This being true, the Supreme Court of the United States has laid down the rules by which the contention of the defendant is to be tested.
In the Oil Co. case, after recognizing the right at common law to recover freight charges in excess of a reasonable rate, and holding that the Commission having approved the rate, the courts could not, in the first instance, inquire into its reasonableness, the Court says: "As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not, in so many words, abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition, we concede that we must be guided by the principle that repeals by implication are not favored, and, indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory."
Again, it has been held in numerous cases, that the fact that Congress has created the Interstate Commerce Commission, and given to it a large measure of control over interstate commerce, does not deprive the State of the right to enforce laws which may incidentally affect commerce, in the absence of action by Congress or the Commission as to the particular matter to be inquired of. A number of instances of such laws are collected in R. R. v. Illinois,
The same rule was applied in R. R. v. Larabee Mills,
The expressions in R. R. v. Reid, supra, that Congress having taken possession of the field — having taken control — are relied on to sustain the argument that this rule has been extended, and that now the State has no power to enforce any law which may remotely affect interstate commerce; but the language referred to must be read with the context, and when this is done it will be seen that the principle is sustained.
In the Reid case the Court quotes with approval the following from R. R.v. Larabee Mills, supra: "In other words, the mere grant by Congress to the Commission of certain National powers in respect to interstate commerce does not of itself and in the absence of action by the Commission interfere with the authority of the State to make those regulations conducive to the welfare and convenience of its citizens. . . . Until specific action by Congress or the Commission, the control of the State over those incidental matters remains undisturbed," and *188 then says: "The duty which was enforced in the State court was the duty of a railroad company engaged in interstate commerce to afford equal local switching service to its shippers, notwithstanding the cars concerning which the service was claimed were eventually to be engaged in interstate commerce. This duty was declared (p. 624) to be a common-law duty which the State might, "at least, in the absence of Congressional action, compel the carrier to discharge.' The principle of that case, therefore, requires us to find specific action either by Congress in the Interstate Commerce Act or by the Commission covering the (231) matters which the statute of North Carolina attempts to regulate."
The decision in the Reid case was upon the ground that, "By the specific provisions of the act to regulate commerce, as amended, Congress has taken control of rate making and charging for interstate shipments, and in that respect such provisions supersede State statutes on the same subject; and that a statute of North Carolina requiring common carriers to transport freight as soon as received to interstate points under penalties for failure, conflicts with the requirement of section 2 of the Hepburn Act of 29 July, 1906, ch. 3591, 34 Stat., 584, forbidding transportation until rates had been fixed and published, and is therefore unenforcible."
Tested by these rules, the right of action of the plaintiff, as it existed at common law, is unimpaired, unless its recognition by the courts would render the act to regulate commerce nugatory, or unless Congress has acted on the subject-matter of this controversy.
Congress has legislated and the Commission has made rules and regulations to compel the performance of duty, and not for the purpose of excusing negligent conduct. The rates prescribed are to afford transporting property safely, and with reasonable care, and are not based upon the assumption that the carrier will not perform its duty, and neither Congress nor the Commission has provided a remedy for negligence, nor purported to relieve from its consequences.
A jury has found in this action that the property of the plaintiff has been damaged $285 by the negligence of the defendant, and if he cannot recover that sum in this action, he is without remedy. He cannot go to Congress, nor can he go to the Commission; and if the contention of the defendant is sustained, an act of Congress designed to regulate commerce and the rules of a commission created to administer its provisions will have the effect of reducing his claim to $100.
Conceding that the right of action exists at common law, it does not render the act of Congress nugatory to enforce it, and in the absence of action by Congress or the Commission upon the subject-matter of (232) the controversy, there is no implied abrogation of the right. *189
The implication we are asked to infer compels us to write into the act of Congress words that cannot be found there, and words which, if written in the bill of lading itself, would be void, according to our authorities, to wit, "that in consideration of the rate paid the carrier shall not be liable for negligence."
Hughes v. R. R.,
The Court then considers several cases, and among them R. R. (234) v. Solan,
This case was approved in Tel. Co. v. Milling Co.,
The Supreme Court of South Carolina has recently decided both questions presented by this appeal against the contention of the defendant. Elliottv. R. R.,
There is also authority for the position that the Interstate Commerce Act, as amended in 1906, instead of taking away the right of action of the plaintiff, preserves it.
In Latta v. R. R., 172 F. 850, the plaintiff sued to recover damages for injuries caused by negligence to a mare and colt, shipped from Nebraska to Iowa, under a bill of lading containing a valuation clause, and the action was removed to the Circuit Court of the United States. Upon the trial, the defendant relied on the clause in the bill of lading limiting the amount of recovery, and it was also shown "that the rate of $24.38 charged by the defendant for the transportation of the animals mentioned was its regular tariff based upon the valuation stated in the contract. It was also conceded at the trial that said tariff rate had been filed with the Interstate Commerce Commission, and published as required by law, and that the rules, regulations, and tariffs of the defendant on file with the Interstate Commerce Commission disclosed that the above-named rate applied to the limited liability contract in use by *192
the company for the transportation of live stock." Upon appeal, the Circuit Court of Appeals held that the plaintiff had the right to recover the full amount of his damages, and that the Interstate Commerce Act, instead of taking away this right, preserved it, the Court saying in reference to the last question: "It is claimed, however, that Congress has legislated upon the very subject now under discussion, and that in consequence thereof the law of Nebraska, so far as it is sought to enforce the same against the provisions of a contract in relation to interstate commerce, is inoperative. In this connection our attention is called to Act June 29, 1906, ch. 3591, sec. 7, 34 Stat. 595 (U.S. Comp. St. (236) Supp., 1907, p. 909). In the section referred to is found the following language: "That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability herein imposed: Provided, 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 laws.' It plainly appears from a reading of the above language that Congress has legislated upon the subject of the liability of railroad corporations as common carriers when engaged in interstate commerce. If it were not for the proviso accompanying the language above quoted, we should feel compelled to determine the validity of the contract in question with reference to the law of Congress. We think that the proviso found in the law above quoted was placed therein to cover just such a case as is now presented. Congress, undoubtedly, was aware of the many conflicting decisions by the courts in reference to the question as to how far common carriers could limit their common-law liability by contract, receipt, rule, or regulation. It therefore was aware that the Constitution of Nebraska, as interpreted by her Supreme Court, was in conflict with the rule established by the United States Supreme Court in Hart v. R. R., supra; and was also aware that the Supreme Court of Pennsylvania in Grogan v.Adams Express Co.,
We conclude, upon reason and authority:
(1) That under the common law as administered in this State, the valuation clause in a bill of lading does not relieve from the consequences of negligence.
(2) That if the common law was different, the Legislature of the State would have the power to pass an act providing that such a clause should not relieve against negligence.
(3) That the Supreme Court of the United States recognizes and follows the decisions of the courts of the State on this question, in cases originating in the State courts, whether based on the common law or statute, although it would hold otherwise in cases originating in the Federal jurisdiction.
(4) That Congress has not, in the act to regulate commerce, purported to relieve against negligence.
(5) That Congress having failed to act in this particular, this State may administer its own laws and enforce its settled policy.
(6) There being no express language in the act of Congress abrogating the common-law right of action of the plaintiff, if abrogated at all, it must be by implication.
(7) That the abrogation of the right will not be implied, unless to permit it to exist would render the act of Congress nugatory.
(8) That the enforcement of the right of action is not in conflict with the terms or purpose of the act of Congress, and therefore its abrogation will not be implied.
(9) That if Congress has legislated upon the matter in controversy, the right of action of the plaintiff is preserved by the proviso in the act.
We are, therefore, of opinion there is
No error.