Harden v. Chesapeake & Ohio Railroad , 157 N.C. 238 ( 1911 )

Action to recover damages to live stock, shipped by plaintiffs over the lines of defendant companies.

On the trial, it appeared that plaintiffs, having purchased a number of standard-bred horses, in February, 1910, shipped same over lines of defendant companies from Lexington, Ky., over C. and O. road, to Lynchburg, Va., and from that point over the Southern to Greensboro, N.C. There was evidence, on the part of plaintiff, tending to show that plaintiffs, during the negotiations for shipment, informed the agent of the C. and O. road that the horses were a high-priced lot and that one was a stallion, about three years old; that the natural propensities of a stallion, of that age, and of this one, were such that it was dangerous to turn him in with the other stock, and that defendant, the C. and O. road, on being informed that such an animal was in the lot, undertook and agreed to have him securely boxed off from the others; that this was done in such a negligent manner, that when the car reached Lynchburg, this partition or stall was entirely down, allowing all the stock to mingle together. The agent of the C. and O., describing the manner in which it had been first constructed, spoke of it as a "sorry job," and, owing to this fact and the condition of the car, the Southern Railway refused to receive the stock, at Lynchburg, until the car was repaired and the conditions corrected; that this was done by the agent of the C. and O. and the stall securely built, but, in replacing the horses in the car, said agent put in the box stall one of them which had already been hurt and turned the stallion in with the others, and with the result that, when the stock arrived at Greensboro, they were bitten and kicked until one of them died of his injuries and others badly damaged, to the amount of $1,160; that of this damage $450 was done to the (241) horses of another shipper, and the damage done to plaintiff's horses, attributable to defendant's negligence, amounted to $710.

There was allegation, with evidence, on part of defendant, tending to show that defendant, the C. and O. Railroad, had only made a rate as far as Lynchburg, the shipment from that point being over the lines of the Southern Railway; that the defendant, the C. and O. Railroad, had not undertaken to box off the stallion and was guilty of no negligence in that respect. Defendant further introduced and relied upon the written contract of shipment or bill of lading, in which it was stipulated, in effect, and as relevant to the inquiry, that, in consideration of a reduced freight rate, the C. and O. Railroad was only to be chargeable for injuries arising from its gross negligence, and, on the question of value, that in cases of any injuries to the stock, for which said company was responsible under the contract, the amount of recovery should, in no case, exceed $75 for each horse, mule, stallion, or jack; $30 for each cow, steer, or bull, and $5 for each other animal; and the agent testified that this was an old printed form, and the value, $75, having been changed to $100 by subsequent regulations of the company, he inserted the $100 in lieu of the $75, and that, by this classification and rating, the plaintiffs saved several hundred dollars in freight charges. There was testimony, also, for defendant, that the classification and freight rate, in this instance, was in accord with a regulation made and approved by the Interstate Commerce Commission.

The judge charged the jury and, on issues submitted, they rendered the following verdict:

1. Was the plaintiff's property injured by the negligence of the defendant, the Southern Railway Company, as alleged in the complaint? Answer: No.

2. Was the plaintiff's property injured by the negligence of the defendant, the Chesapeake and Ohio Railway Company, as alleged in the complaint? Answer: Yes.

3. What damages is plaintiff entitled to recover from the Southern Railway Company? Answer: None.

4. What damages is plaintiff entitled to recover from the (242) Chesapeake and Ohio Railway Company? Answer: $710.

Judgment on verdict for plaintiff, and defendant C. and O. Railroad excepted and appealed. After stating the case: It is very generally held that railroad companies, receiving live stock for shipment, take and hold them as common carriers, and, as a rule, are chargeable with the duties of such carriers concerning them. There is a recognized limitation on the obligations of common carriers in reference to live stock, to the effect that they are not considered as insurers of such property against injuries arising from the natural or proper vices or the inherent nature and propensities of the animals themselves, or from the "vitality of the freight," as it is sometimes expressed, unless the injuries from such source are attributable, in whole or in part, to the carrier's negligence. The general principle, with its recognized modifications, is very well stated in Moore on Carriers, p. 486, as follows: "Carriers of live stock are common carriers, subject to all the duties, responsibilities, and liabilities, and entitled to all the rights and privileges, of a common carrier of merchandise or other inanimate property, save in one important respect. While common carriers are insurers of inanimate property against all loss and damage except such as is inevitable or attributable to the act of God, or caused by public enemies, and except that they are not held liable for losses which result from the inherent and intrinsic qualities of the goods carried by them, as carriers of live stock, they are not insurers of animals against injuries arising from or attributable to the natural or proper vices, or the inherent nature, propensities, and habits of the animals themselves, and which could not be prevented by foresight, vigilance, and care." And in Hale on Bailments and Carriers it is said: "Carriers of live stock are common carriers wherever carriers of other goods would be, but they are not liable, in the absence of negligence, for such injuries as occur in consequence of the vitality of the freight"; and these statements (243) will be found to accord with the great weight of authority. Selby v. R. R., 113 N.C. 592; Covington Stock Yards v. Keith,139 U.S. 128; McCune v. R. R., 52 Iowa 600; Clark v. R. R.,14 N.Y., 570; Elliott on Railroads, sec. 1548; Hutchinson on Carriers (3 Ed.), sec. 339. Accordingly, carriers in the proper performance of their duties are required to provide suitable and adequate cars for the care and preservation of live stock during their carriage and to afford proper facilities for having them watered and attended to and to make proper provision for them in reference to peculiar traits or conditions of which they have notice, and especially when the carriers makes stipulations in reference to such conditions. Kinnick Bros. v. R. R., 69 Iowa 665;Haynes v. R. R., 54 Mo. App. 582; Sturgeon v. R. R., 65 Mo., 596; R. R.v. Allen, 31 Ind. 394; Smith v. R. R., 12 Allen, 531; Shaw v. R. R., 8 L.R.A., 10 (1881-82); Hutchison on Carriers (3 Ed.), secs. 342, 343, and 636; Moore on Carriers, 498, sec. 3.

There was ample evidence on part of plaintiffs tending to establish a breach of duty on the part of the C. and O. Railroad Company and justifying the verdict that the stock was injured by the negligence of said company. The agent of that road, testifying for defendant, in reference to the original construction of the stall, said it was "a sorry job," and when he had caused it to be rebuilt at Lynchburg, he put the wrong horse into it and turned the stallion in with the other horses. This being true, it is well established with us that "a common carrier in its contract of shipment cannot stipulate against recovery for loss or damage occasioned by its own negligence, and it can make no such stipulation against total or partial loss. Stringfield v. R. R., 152 N.C. 128; citingMcConnell v. R. R., 144 N.C. 90; Everett v. R. R., 138 N.C. 71;Capehart v. R. R., 81 N.C. 438; Parker v. R. R., 133 N.C. 335; Caldisonv. Steamship Co., 170 U.S. 272; R. R. v. Solan, 169 U.S. 135; R. R. v.Lockwood, 84 U.S. 357; Nuneton v. R. R., 31 Minn. 85, and numerous other decisions.

There are cases which hold that the act of defendant, in turning the stallion in with the other stock, would be an act of gross negligence and so expressly within the terms of the agreement; but, without reference to this aspect of the evidence, under the doctrine as it (244) prevails in this jurisdiction, this stipulation is entirely void as against public policy, or in any event can only operate to relieve them from liability as insurers, which is perhaps the correct interpretation of the words. And on the facts in evidence this same principle, which avoids stipulations against recovery for negligence on the part of the carrier, should obtain in reference to the clause in the bill of lading restricting the amount where the recovery is had on that ground. Speaking to this question in Everett's case, the Court said: "It would be an idle thing for the courts to declare the principle that contracts for total exemption from loss arising from a carrier's negligence a subversion of public policy and void, and at the same time uphold a partial limitation which could arise to prevent anything like adequate or substantial recovery by the shipper."

In the present case it appears that this was a high-priced lot of horses, and the agent of the initial carrier was informed of this fact; that the value was inserted by the agent in a printed formula according to a predetermined, inadequate valuation, and that there was no intent or effort to fix upon the true value of the shipment or to approximate it under any conditions sanctioned or permitted by the law; and it further appears by the uncontradicted testimony that the fair average value of the stock was between two and three hundred dollars per head. In Stringfield'scase, supra, on facts very similar, the Court held that a restrictive stipulation of this kind as to recoveries for negligence on the part of carriers was in contravention of public policy and void. The ruling inStringfield's case and others of like purport was not made to depend upon whether there was one or more horses in the shipment — a view presented on the argument here — but on the position that there had been no bona fide effort to arrive at the true value of the shipment or to approximate it, and to allow an arbitrary, predetermined valuation to stand for below the actual value would in actions of that character be in effect to uphold a stipulation against recovery for negligence — a stipulation, as stated, forbidden by our law. In Stringfield's case (245) attention was called to the fact that the principle we are discussing, "when properly understood and applied, did not prevent the parties from agreeing upon the valuation of a given shipment which should form the basis of adjustment in case of loss or damage, and where this was done in the bona fide effort to fix upon the true value and was made the basis of a fair and reasonable shipping rate, the parties would be held to the agreed valuation, though the loss should occur by reason of the carrier's negligence." And it was said, too, that an agreed valuation might be in rare instances allowed to stand for the purpose indicated, where it appeared that the agent of the carrier being without knowledge or notice of the true value of the property and without opportunity to inform himself so as to make intelligent estimate concerning it, the parties, in the bona fide effort to put a correct valuation upon it, fix upon a fair average value of property of the kind constituting the proposed shipment and make the same, as stated, the basis of a fair and reasonable shipping rate — an instance afforded in Jones v. R. R., 148 N.C. 581. Such an agreement and a valuation so established may not be allowed to prevail simply because the minds of the parties have met and agreed upon the amount, but in actions for injuries caused by negligence of the carrier it must have been agreed upon in the bona fide effort to fix upon a true valuation of the stock, and as an aid to the correct solution it may at times be well to submit an issue as to the true value or the average valuation of the property of the kind constituting the shipment where such a view of the question is permissible. There is no allegation or evidence of any fraud or concealment as to the value on the part of the shipper, a principle sometimes present in such cases, nor can the doctrine of estoppel be invoked for defendant's relief on the facts presented in the testimony. The plaintiffs, on this question, testified that they simply asked for the shipping rate, and it was given them, without more. The agent of defendant testified that all that was said on the subject was that he asked if the horses were to be shipped at the usual valuation, and on being answered yes, he wrote that valuation in the bill of lading. And further, as follows:

Q. Did he say anything about the value of the horses? A. No, (246) I do not recall that he did. I asked him the question if they were to be shipped at that valuation, and he said yes.

Q. He did not say anything about the value himself? A. No.

Q. He did not suggest it to you? A. No.

Q. He did not read the contract; it was all done in about two minutes?

A. Yes; it would take a long time to read it.

Q. You did not read it to him? A. No.

Q. He said nothing as to the value of the horses? A. He only answered my question when I asked if they were to be shipped on the $100 valuation. He answered my question.

Speaking to this subject in Stringfield's case, the Court said: "Nor do we think that the doctrine of estoppel as applied in many of the cases relied upon should avail defendant here. Some of these decisions could be reconciled on the ground that if the disproportion between the actual and the stipulated values is so great as to give clear indication that there was no effort made to fix upon or approximate the true value, as in this case, it could be properly held that such a contract would be neither fair nor reasonable; but in many of them we think that the doctrine of estoppel is too broadly stated. For if a contract like the one we are considering is such as to deny substantial recovery for loss occasioned by the carrier's negligence, it is void as against public policy, and it is not permissible to uphold such an agreement on the principle of estoppel. Such a position carried to its logical conclusion would enable individuals as to their personal contracts and conduct towards each other to set at naught both the public statutes and police regulations of the State. Accordingly, we find that except in cases of positive fraud, which in whole or in part may operate to set aside the contract relation, the doctrine of estoppel as ordinarily applied is only available in aid or extension of valid contracts. Bigelow on Estoppel (5 Ed.), citing Brightman v. Hicks,108 Mass. 246; Langorn v. Sankey, 55 Iowa 52; Shurmen v. Eastin,47 Ark. 351; Klink v. Kudbel, 37 Ark. 304, authorities which fully support the text."

It was further insisted that the recovery should not be sustained, because the classification and rate made in the bill of lading had the sanction and approval of the Interstate Commerce Commission. We have not the ruling of the Commission before us, but in our (247) opinion it cannot for a moment be sustained that a ruling of the commission designed and intended simply as a regulation establishing a reasonable and proper freight rate, without more, should have the effect of altering a principle of public policy long prevailing in the State, as said in Everett's case, supra, a principle established and adhered to for grave and weighty reasons and considered necessary for the protection of the great body of shippers. Replying to a suggestion somewhat similar, the Court in Kissenger v. Fitzgerald, 152 N.C. 252, said: "It is the settled policy of this State that common carriers may not contract against loss or damage occasioned by their negligence; and it has been held by the Supreme Court of the United States that, unless and until there is some valid regulation by Congress or the Interstate Commerce Commission directly affecting the matter, a State has the right to establish such a policy and enforce it in reference to interstate shipments. R. R. v. Hughes, 191 U.S. 477."

We are not inadvertent to the fact that the contract of shipment was made in Kentucky, and there is no evidence before us as to the rules prevailing in that State concerning it. The doctrine referred to, and which we hold to be controlling on the facts presented, was established and has come down to us from the principles and policy of the common law in reference to public carriers, and the same is presumed to obtain in a sister State in the absence of evidence to the contrary. Roberts v. Pratt,152 N.C. 731. On investigation, however, it seems that like doctrine prevails in full force in the State of Kentucky and has been made a part of the organic law of that State. Lewis v. R. R., 135 Ky. 362.

On the whole matter, we find no reversible error in the record, and the judgment in plaintiff's favor is affirmed.

No error.