250 Pa. 527 | Pa. | 1915
Opinion by
Plaintiff delivered a mare and colt to defendant at Milwaukee, Wisconsin, to be forwarded by express to Erie, Pennsylvania. The animals arrived at the point of destination on Sunday, were unloaded and placed in the basement of a barn by the express company for safe keeping until Monday, when delivery was tendered to the consignee. When delivery was tendered it was discovered that the colt was severely injured, its left hip having been smashed and broken during the night while it was lodged in a roughly constructed stall in the basement of the barn. It is conceded that the colt, which came of a celebrated strain of highly bred horses, had but little if any value after the injury. Plaintiff declined to accept delivery of the colt because of its injured condition and brought this action to recover damages on the ground of negligence. The jury found in favor of the plaintiff for the value of the colt and appellant complains of errors alleged to have been committed at the trial.
The first contention pressed upon our attention is that there was not sufficient evidence of negligence to warrant a submission of the case to the jury. It is strongly urged by learned counsel for appellant that there was no direct evidence as to how the accident occurred, nor to indicate how the hip bone was broken, nor to show that the colt had stepped into a hole in the runway behind the stall, nor any other testimony from which it could be reasonably inferred that the proximate cause of the injury was anything done or left undone by the express company. It is true there was no direct evidence as to what caused the accident, but we cannot agree that there was no testimony upon which to base a finding of negligence in taking care of the colt. The express company had charge of thp colt when it was injured; it selected
We cannot agree with the learned counsel for appel
The main contention of appellant is that in the light of the Federal decisions the amount recovered should have been limited to $50. In other words that this is a case of limited liability, the amount to be determined upon the basis of the rate charged. It is urged, and with much force, that the plaintiff was bound by the rates and schedules filed by defendant with the Interstate Commerce Commission, and that the shipper not having declared any valuation at the time of shipment and having paid to the express company a charge based upon a minimum valuation of $50, is thereby precluded from recovering upon the basis of the actual value of the colt. This raises an interesting question and one as to which we are in some doubt. The Federal decisions control, and if the question had been passed upon in that jurisdiction in a case where the facts are the same as here presented, it would be necessary to accept that authority as final and conclusive. We entirely agree with learned counsel for appellant that under the decisions of the Supreme Court of the United States construing the Federal statutes a common carrier may limit its liability on interstate shipments even as against its own negligence:
This brings us to a consideration of what may be deemed the controlling question in the case. Did the bill of lading or the contract of shipment between the parties limit the liability of the express company to $50 as the value of the colt? The rate charged was based upon this valuation, but the shipper did not declare that or any other value, and had no actual notice of the intention of appellant to limit its liability in this manner. It is contended for appellant that the contract of shipment gave the shipper notice that the actual value must be declared, and that failure to so declare gave the carrier the right to base the rate of carriage upon the mininfum valuation fixed in the schedule of rates, and this having been done, the liability for loss or damages was likewise limited. We are not convinced that the cases relied on to sustain this contention are authority for the doctrine so broadly stated. The duty of the shipper to declare a value should be no greater than that of the carrier to ask such valuation to be declared. If both parties fail to observe the requirements of the rule,
We find nothing in the bill of lading, which is in the form of a contract between the parties, to defeat a recovery upon the basis of actual value under the facts of the present case. Clause one contains a direction to the shipper to value his stock, which valuation is to be inserted in the contract, presumably by the carrier; but neither the shipper nor the carrier complied with the direction and hence this provision cannot be relied on as a basis for fixing the rate of carriage or as a measure of liability when damages are sustained. Clause two states that the shipper demanded to be advised as to the rates to be charged and was offered alternative rates upon the basis of value declared; but no value was declared and none inserted in the paragraph relating to alternative rates. How then can it be said.the shipper was charged with notice that the rate of carriage was fixed upon the basis of value declared, when no value was declared, and that the liability of the carrier was limited in the same manner? But we cannot give any more time to the discussion of the contract, and must be content to suggest that as we view it nothing therein contained in the light of what occurred between the parties is sufficient to preclude a recovery upon the basis of actual value. We concede that appellant could have limited its liability to $50, as is contended, but it did not do so in
At the trial appellant offered to prove that the failure to insert a valuation in clause 5 of the contract opposite the words “number and kind, value each,” was an error of its agent at Milwaukee. The offer was refused and this has been assigned for error. It is too late to correct an error of this kind after the shipment had been made, the injury sustained, and the right of action accrued. Such correction would in effect alter the terms of a written contract not upon the ground of a mutual mistake but because an agent is willing to say that he did not follow the instructions of his principal in preparing it for éxecution. We know of no case that goes so far and cannot sustain this contention.
Judgment affirmed.