62 Ind. App. 208 | Ind. Ct. App. | 1915
This is an action for damages alleged to have been sustained by appellees in connection with nine separate interstate shipments of cattle, hogs and sheep. Seven of the shipments were from Frankfort, Indiana, to Pittsburgh, Pennsylvania, and the other two were from Frankfort, Indiana, to Buffalo, New York. The suit is based on the common-law duty of appellant to safely carry and deliver the live stock to the designated place. The complaint alleges negligence of appellant in delaying, the shipments and in failing to transport the live stock with reasonable diligence by reason of which negligence some of appellees’ live stock died enroute; that there was extra shrinkage on other stock; that the animals had a stale appearance by reason of being kept so long on the road, and that there was a decline in the market price between the time the stock should have arrived and the time it did arrive, by reason of all of which appellees' were damaged.
The complaint consists of nineparagraphs, each of which covers a different interstate shipment, but they are in all essentials the same. In each it is alleged that appellees were partners engaged in buying and shipping live stock; that appellant owned and operated a railroad from Toledo, Ohio, to East St. Louis, Illinois; that it was a common carrier of freight and passengers for hire and engaged in interstate commerce, and held itself out as such common carrier from Frankfort, Indiana, to Pittsburgh, Pennsylvania and Buffalo, New York.
The question arising under the motion for a new trial, and not waived by failure to present in the briefs, is the sufficiency of the evidence to sustain the verdict. Kaufman v. Alexander (1913), 180 Ind. 670, 672, 103 N. E. 481; Chicago, etc., R. Co. v. Dinius (1913), 180 Ind. 596, 626, 103 N. E. 652; Harrah v. Dyer (1913), 180 Ind. 229, 242, 102 N. E. 14, Ann. Cas. 1916B 868.
Appellees do not claim that they complied with the contract pleaded by appellant by filing verified proofs of claims within the five days therein prescribed; but they do contend that they were given no choice of rates, and were compelled to ship at the rate named in the one special contract or not at all; that by reason thereof such alleged contracts are not binding on them; that independent of the state or federal statutes, appellant is liable under the common law for the damages sustained.
Appellant contends that no common-law liability is shown; that the shipments were made under special written.contracts, and that in no event can a common-law liability be shown by proof that shipments were so made; that the contracts, under
To sustain the judgment of the lower court, two
Section 22 of the Interstate Commerce Act (24 Stat. at L. 387, §8595 U. S. Comp. St. 1913) provides that: “Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”
In considering this provision, the Supreme Court of the United States, in Texas, etc., R. Co. v. Abilene Cotton Oil Co. (1907), 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, said: “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. * * * This clause, however, can not in reason be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. * * * The clause is concerned alone with rights recognized in or duties imposed by the act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative, when other appropriate common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the act.”
The Carmack amendment to the Interstate Commerce Act (34 Stat. at L. 595, §8592 U. S.
In the case of Adams Express Co. v. Croninger, supra, 506, the Supreme Court of the United States said: “The suggestion that an absolute liability exists for every loss, damage or injury, from any and every cause, would be to make such a carrier an absolute insurer and liable for unavoidable loss or damage though due to uncontrollable forces. That this was the intent of Congress is not conceivable. To give such emphasis to the words, ‘any loss or damage,’ would be to ignore the qualifying words, ‘caused by it.’ The liability thus imposed is limited to ‘any loss, injury, or damage caused by it or a succeeding carrier to whom the property may be delivered,’ and plainly implies a liability from some default in its common-law duty as a common carrier.
“But it has been argued that the non-exclusive character of this regulation is manifested by the proviso of the section, and that state legislation upon the same subject is not superseded, and that the holder of any such bill of lading may resort to any right of action against such a carrier conferred by existing state law. 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 divers regulation which it was the purpose of congress to put an end to.
“What this court said of the §22 of this act of 1906 in the case of Texas & Pac. Ry. v. Abilene Cotton Mills, 204 U. S. 426, is applicable to this contention. It was claimed that that section
“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.”
In the ease at bar, there is evidence tending to. show that appellees had to sign the special contracts relied on by appellant to secure the shipment of their live stock; that appellant would not move the cars until such contracts were signed; that one of the appellees had asked appellant’s agents if they would ship the stock without such contract and was informed that it would not be done; that the agents made him sign up blank contracts in advance of the shipments.
In Cleveland, etc., R. Co. v. Hollowell, supra, the Supreme Court said: “It is not necessary, to conclude the owner by the terms of a special contract limiting the liability of the carrier, that he should actually have been offered the option of shipping subject to the terms of such contract or under the carrier’s common-law liability. It will be sufficient if it would have been given if the owner had demanded
We find no reversible error. Judgment affirmed.
Note. — Reported in 110 N. E. 756. Limitation of carrier’s liability for injury to or loss of goods as affected by the Interstate Commerce Act, Ann. Cas. 1912B 672; 1915D 612. Constitutionality of state regulation of interstate commerce, 27 Am. St. 547. See, also, under (2) 7 Cyc 421; (4), (5) 6 Cyc 395, 396; (6) 6 Cyc 519; 9 Ann. Cas. 17; 14 Ann. Cas. 416; Ann. Cas. 1914A 231; (7) 6 Cyc 505.