Illinois Cent. R. v. Rogers , 116 Miss. 99 ( 1917 )

Sykes, J.

delivered the opinion of the court.

Rogers & Hurdle, appellees, sued the Illinois Central Railroad Company for one thousand dollars damages, for injuriéis to a carload of twenty-six mules shipped by appellees from New Albany to Leland, both points within the state of Mississippi. The bill of lading shows upon its face that the car was to be transported from New Albany, Miss., to Memphis, Tenn., over the St. Louis & San Francisco Railroad Company, and at Memphiis, Tenn., this carrier was to deliver the ear to another carrier to be transported to the point of destination, Leland, Miss. The car was in fact delivered at Memphis to the Yazoo & Mississippi Valley Railroad Company for transportation upon its line to Leland. There is an agreement shown in the record between counisel for appellant and appellee that the Illinois Central Railroad Company in this case stands in the shoes or place of the Yazoo & Mississippi Valley Railroad Company; that if the Yazoo & Mississippi Valley Railroad Company is liable then the Illinoiis Central Railroad Company is liable. The record also shows that it was the agreement of the initial carrier and the shippers that the shipment should move by Memphis, Tenn. The car viras unduly delayed in transit while in the hands of the Yazoo and Mississippi Valley Railroad Company, which resulted in the injuriéis herein sued for.

This suit is not against the initial carrier but is against the connecting or terminal carrier. A contract of affreightment, or live stock contract, was duly entered into between the initial carrier and the shippers. Among other things this contract provides:

“The rate charges for the shipments of live ¡stock under the following contract is lower than the rate charged if the shipment is not made under the following contract, but at carrier’s risk. The rates of freight are based upon the nature and extent of liability assumed by the carrier. The shipper has the right of election whether to ship live stock under this contract at the lower rate, or not nnder this contract, but at carrier’is risk at a higher rate.

“(1) The company shall transport the following cars of live stock, and the parties in charge thereof, viz.cars, said to contain twenty-five head of mules, consigned to W. F. Rogers, Leland, Miss., consignee, from New Albany, Miss., station, to Memphiis, Tenn., station, an the line of this company, and if the destination is beyond the line of this company shall deliver the same at said station to a carrier whose line may form a part of the route to Leland, Miss., the place of destination, at the reduced rate of --per car, or-, which is less than the rate for (shipments at carrier’s risk. . . . ”

“ (13) As a condition precedent to recovery of damages for any death, the shipper shall give notice in writing, of his claim, to some general officer of the company, or the nearest station agent, or the agent at destination and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be promptly and fully investigated, and a failure to comply with this condition shall be a bar to the recovery of any damage's for such death, loss or injury or delay. . . .”

“(16) No suit or action for the recovery of any claim for damages for death, loss, injury or delay of the live stock shall be sustainable, unless begun within six (6) months next after the cause of action shall accrue, and if begun later, the lapse of time shall be eoncluisive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.

“ (17) The shipper acknowledges that he had the.option of shipping the live stock at carrier’s risk, at a higher rate, or under this contract, at a lower rate, and that he has elected to make this contract and accept the lower rate.”

• The testimony of Mr. Rogers, who signed the contract, is to the effect that nothing was said at the time that he signed the same between him and the agent as to any other contract of affreightment that he might have made for the transportation of these mules. His testimony also shows that he had been engaged in the business of shipping cattle and stock for a number of years.

The case was tried by agreement before the circuit judge, acting as both judge and jury. There was no controversy as to the measure of damages. The appellant railroad company, defendant in the court below, presents the same defense here as there, viz., that the contract entered into between these parties was for. an interstate shipment of live stock, and that the provisions in the bill of lading govern; that under clause 13 of said bill of lading a written claim for damages was not made within one day after the stock reached the point of destination; that under clause 16 of the bill of lading this suit was not filed within six months after the cause of injury accrued.

The testimony in the record relating to these questions is as follows: Upon the receipt of the stock at Leland, Miss., before the shippers would accept the same, they had the agent of the railroad company to note on the freight bill that the “shipper received stock under condition stock in bad shape account overrun and lack feed and water.” We think this is a sufficient compliance with clause 13.

The testimouy shows that there.was some correspondence between the shippers and the general freight agent of the railroad company about the injuries to the stock and a settlement therefor. There is nothing in this correspondence specifically referring to the six months’ limitation for bringing suit contained in the bill of lading. No extension of this time was requested or granted in this correspondence. Therefore there could be no waiver of this limitation by virtue of this correspondence. Upon the trial, judgment was rendered in favor of plaintiffs for the amount sued for, from which judgment this appeal is prosecuted.

The determinative question in this ease is whether or not this was an interstate shipment of stock and is governed by the Carmack Amendment to the Interstate Commerce Act of Congress. Counsel for appellees contend that since this amendment uses the terms, “that any common carrier, railroad, or transportation company receiving jproperty for transportation from a point in one state to a point in another state, shall issue a receipt,” etc., and as the initial point and the point of destination were both within the state of Mississippi, this amendment does not govern. If this contention were correct, then the judgment-of the lower court would be affirmed. However, the bill of lading in this case shows that the shipment moved from a point in Mississippi to a point in Tennessee, and thence to the point of destination in'Mississippi.

Where a bill of lading shows the routing to be outside of the state, though the points of origin and destination both be within the same state, under the decisions of the United States supreme court it is an interstate shipment. “The transportation of these goods certainly went outside of Arkansas, and we are of opinion that in its aspect of commerce it was not confined within the state. ’’ Hanley v. Railroad Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333. In this same opinion Mr. Justice Holm:es quotes with approval from the case of Steamship Co. v. Railroad Co. (C. C.), 9 Sawy. 253, 18 Fed. 10, as follows:

“‘To bring the transportation within the control of the state, as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the state.’”

These cases are decisive of the question that this shipment was an interstate shipment.

It is argued by counsel for appellee that the shipment could have moved wholly within the state of Mississippi, between the point of origin and the point of destination. While this may be true, at the same time the contract of affreightment routed the shipment via Memphis, Tenn. It was not left optional with the initial carrier to route the shipment. The Carmack Amendment was intended to and governs all interstate shipments. Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N.S.) 257; Railroad Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Railroad Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683.

It is contended ^further by counsel for appellees that this amendment does not apply because the suit is not against the initial carrier, based upon the bill of lading, but is one in tort against the connecting carrier. This question is decided adversely to this contention in the case of Railroad Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, Mr. Justice Hughes, in answering this contention, saying:

“The connecting carrier is not .relieved from liability by the Carmack Amendment, but the bill of lading required to be issued by the initial carrier, upon an interstate shipment, governs the entire transportation, and thus fixes the obligations of all participating carriers to the extent that the terms of the bill of lading are applicable and valid. ‘ 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’ ” —citing a number of authorities.

The provision contained in clause 16, requiring the suit to be brought within six months, is a valid and binding one, and was in no wise waived in this case by the railroad company. Railway Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690.

The bill of lading or contract of affreightment, duly signed by the shippers, is an admission by them that they were offered by the initial carrier two separate contracts of shipment, and that they chose this one containing the stipulations above referred to in consideration of the reduced rate of carriage. Before they can avoid the stipulations in the contract the burden of proof is upon them to show that they were not offered the choice of rates referred to in this contract. The recitals in the contract are prima-facie evidence of the fact that this choice was offered the shippers. The testimony shows that the shippers accepted and signed the contract without reading it; but this testimony does not arise to the dignity of contradicting the written admissions contained in the contract.

“The essential choice of rates must be made to appear before a carrier can successfully claim the benefit of such a limitation and relief from full liability. And as no interstate rates are lawful unless duly filed with-the commission, it may become necessary for the carrier to prove its schedules in order to make out the requisite choice. But where a bill of lading, signed by both parties, recites that lawful alternate rates based on specified values were offered, such recitals constitute admissions by the shipper and sufficient prima-facie evidence of choice. If in such a case the shipper wishes to contradict Ms own admissions, the burden of proof is upon Mm.” Railroad Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265.

The contract being an interstate one, the provisions of the Carmack Amendment govern the liability. In determining tMs liability we are governed by the decisions of the supreme court of the United States,and under these decisions clause 16 of the bill of lading, which provides that the suit must be brought within six months, is a valid and binding clause. The appellees in this case did not bring suit within the six months provided in the contract, and for this reason cannot recover.

The judgment of the lower court is reversed, and judgment will be entered here for the appellant.

Reversed, and judgment here.