Washington Horse Exchange v. L. & N. Railroad , 171 N.C. 65 ( 1916 )

Walker, J.,

after stating the case: First. While the charge of the court in this case was not as full or a.s explicit as it might have been, it was sufficiently clear for the jury to understand what was the rule of law as to tbe liability of defendant for negligence, and it gave tbe defendant tbe benefit of any finding that tbe injury to tbe animals was due not to defendant’s negligence, but solely to tbe condition of tbe weather. We discu.ssed fully, in Kime v. R. R., 160 N. C., 457, tbe duty and responsibility of a carrier by rail with respect to tbe selection of a suitable car, and also with regard to tbe care of tbe animals during tbe transportation, and it is not necessary that more should be said here. We there held that tbe fact that tbe shipper happened to examine tbe car and believed it to be suitable and sufficient would not relieve tbe • defendant of liability if in fact it was defective. We said in that case: “A general stipulation that tbe shipper has examined tbe car in which tbe stock is shipped, and accepts it as suitable and sufficient, will not estop him from recovering for injuries due to a defective car, inasmuch as tbe carrier cannot limit bis common-law liability so as to exempt himself from tbe consequences of bis own negligence.” 6 Cyc., p. 441; 2 Hutchison on Carriers (1906), sec. 646 (324), and p. 712; R. R. v. Dies, 91 Tenn., 177.

Second. There was some evidence that tbe stock was in good condition when delivered to tbe initial carrier at East St. Louis, or, at least, there were facts and circumstances from 'which an inference to that effect could fairly and reasonably have been drawn by tbe jury. -The defendant’s evidence furnished some proof of tbe fact, and also tbe plaintiff’s. ■

Third. Tbe defendant contends that tbe plaintiff has not shown compliance with tbe stipulation in tbe bill of lading requiring written notice of any claim for damages to be given before removal of tbe stock at tbe place of destination, but there was evidence that there was actual knowledge by tbe agent of tbe condition of tbe stock before tbe removal took place, and we have held this to be a waiver, or rather a substitute for such notice in writing. Whether right or wrong, we have so decided. Tbe case of Baldwin v. R. R., 170 N. C., 12, settled tbe following points:

1. Stipulations in bills of lading covering interstate shipments .of live stock, requiring, written notice of claims for damages to be given before tbe stock is removed from tbe carrier’s possession, are valid.

2. Tbe requirement in an interstate bill of lading that notice of damage to live stock shall be in writing is waived by actual knowledge on tbe part of tbe carrier of tbe injury.

3. Tbe rules laid down by this Court after tbe passage of tbe Elkins Act of 1903 (act Cong. 19 February, 1903), cb. 708, 32 Stat., 847 (U. S. Com. Stat., 1913, secs. 8597-8599), that stipulations in bills of lading covering interstate shipments of live stock, requiring written notice of claims for damages, are valid, and that such written notice is waived by actual knowledge of tbe injury on tbe part of tbe carrier, will be adhered to until a declaration by the United States Supreme Court that such rules are abrogated by the act.

4. The rule permitting knowledge to supply the place of written notice, being a mode of proof applicable alike to all railroads and in favor of all shippers, and enforced against a carrier who has had possession, with every opportunity to know the extent of the injury and its cause, is not a discrimination between railroads, nor a preference in favor of a particular shipper at the expense of others.

That case was approved in the later case, at the same term, of Mewborn v. R. R., 170 N. C., 205. This question, therefore', is closed so far as this Court is concerned. We simply follow our own precedents, which, as stated, in the Baldwin case, must stand until reviewed and reversed. But we will again refer to this subject.

Under the rule laid down in.Baldwiris case, to which we have referred, actual knowledge by the last carrier, or its agent, at the place for delivery to the consignee will in law be ascribed to the initial and other carriers in the line of transportation, and it was so held, we think, in that case, and also in Mewborn’s case, supra, where the action was brought against this same defendant, though the horses and mules were deliverable, and were actually delivered, at Kinston, N. 0., by the Southern Eailway Company, which was the last carrier.

Fourth. We are of the opinion that the court gave to the jury the correct instruction as to the measure of damages. It cannot be that if the horses or mules were lost or injured by defendant’s negligence, but were still worth as much as $100 apiece, the plaintiff would not be entitled to recover anything for the loss of or damage to them. The clause of the contract, as to value, was intended to limit the recovery to an amount not exceeding the stipulated value, in consideration of the reduced freight rate, and not to deprive the shipper of any redress for the defendant’s breach of its contract to safely carry and deliver to the consignee, or for the tort growing out of its negligence in failing to properly transport and care for the stock. The correct rule of damages requires that the jury should determine to what extent the horses and mules were damaged or their value impaired, assuming $100 to be the limit of the value as to each one of them, and assess the damages accordingly; or, in other words, the assessment of damages, as to each animal, must be based upon a valuation not exceeding $100, it being the contract limitation and not the actual valuation which determines the measure of damages. If the rule as stated by the defendant in its prayer for instructions should govern, damages would rarely be recovered under such contracts of carriage, however apparent it may be that the carriers’ negligence caused the injury. Tb,e true value, within the restriction mentioned, should be ascertained at the place of shipment, as that is provided for in the bill of lading. 4 Euling Case Law, 930; M. & M. Transportation Co. v. Eichenberg, 109 Md., 211 (130 Am. State Rep., 524). This Court beld tbe clause in the bill of lading fixing or limiting the value of the stock to be invalid so far as it is an exemption from its liability for negligence or is unjust or unreasonable. Pace Mule Co. v. R. R., 160 N. C., 215, 224; Stehli v. Express Co., ibid., 493. In the former case the Court said at p. 224: “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.” But in Adams Express Co. v. Croninger, 226 U. S., 491; M. K. & T. R. Co. v. Harriman, 227 U. S., 657 (57 L. Ed., 690); K. C. So. Ry. Co. v. Carl, 227 U. S., 683; S. A. L. Ry. Co. v. Pace Mule Co., 234 U. S., 751 (58 L. Ed., 1571); Southern Express Co. v. Stehli, 238 U. S., 605 (59 L. Ed., 1485), and other cases, which are collected in 59 L. Ed., at p. 1485, the Federal Supreme Court held that:

1. State laws or policy nullifying contracts limiting the liability of a carrier for loss or damage to the agreed or declared value upon which the rate was based are superseded, so far as interstate shipments are concerned, by the Carmack amendment of 29 June, 1906, sec. 7 (34 Stat. at L., 593, ch. 3591, U. S. Com. Stat., Supp. 1911, p. 1304), to the act of 4 February, 1887 (24 Stat. at L., 386, ch. 104), which furnishes the exclusive rule on the subject of the liability of a carrier under contracts for interstate shipment.

2. The shipper and carrier of an interstate shipment are not forbidden to contract to limit the carrier’s liability to an agreed value made to adjust the rate by the provisions of the Carmack amendment of 29 June, 1906, to the act of 4 February, 1887, sec. 20, prohibiting exemptions from the liability imposed by the act.

¥e have to follow what is there decided in construing such contracts, and the cases apply as well to the place of valuation as to the valuation itself.

While the trial court did not expressly state in the charge, as to damages, that the value of the horses and mules must be confined to the place of shipment, we think this is clearly implied. But if it is not, it was a mere inadvertent omission of the court, to which no exception was definitely taken, or, so far as we can see from the record, no exception at all. Defendant may have, by implication, requested an instruction a.s to this matter, which is the subject of its 16th assignment of error, but tbe prayer, if it does sufficiently state the rule as to the place of valuation, was blended with another one, to the effect that if the horses and mules were worth $100 apiece, after they were damaged, plaintiff could not recover anything, which is erroneous, as we have seen. The instruction; under the well settled rule, must be good as a whole, for otherwise it can properly be refused. The judge charged the jury, in respect to this matter, with substantial correctness.

We may further say, as to the written notice required to be given before removing the stock from the terminal station, that this Court has consistently held such a stipulation in a bill of lading to be valid. Selby v. R. R., 113 N. C., 594; Austin v. R. R., 151 N. C., 137; Kime v. R. R., 153 N. C., 400; Duvall v. R. R., 167 N. C., 24. As already noted, we have also said that it may be waived, or that knowledge of the condition of the animals before they are taken away will supply the place of a written notice. It is suggested that this provision in the contract of shipment for written notice is governed by the same rule of decision laid down in the Federal cases as to the valuation clause, already cited and commented upon, ánd that since the Carmack amendment was passed the State courts cannot adopt a construction in opposition to it, the entire contract being based upon the rate fixed by the carrier and approved by the Interstate Commerce Commission, and no such construction being allowable under the Carmack amendment; and further, that the agent’s authority was limited by the express terms of the bill of lading to receiving a written notice, and he therefore could not waive this stipulation without the consent or ratification of his principal, such a waiver not being within the scope of his duty or authority, because a power to receive notice does not include one to waive it, either expressly or by conduct. These might be persuasive if not cogent reasons, were it now an open question in this Court, but we have decided the other way too often to retrace our steps and enter upon the investigation anew as if it were an original one (res novo). We must await, if it is a Federal question, the judgment of a higher court upon it, which, if unfavorable to the view heretofore taken by this Court, will be followed as the proper law. ■

A discussion of the question as to value will not much longer be a practical one, as Congress, on 4 March, 1915, enacted a law (known as the Cummins amendment) abolishing all exemptions from liability for loss or injury or damage to property transported in interstate commerce which is caused by the carrier, and making the carrier liable to the shipper for the full actual loss, damage, or injury to the property, notwithstanding any limitation of liability or limitation of the amount of recovery, or any representation or agreement as to the value in any receipt or bill of lading or in any contract, rule or regulation, or in any tariff schedule, or in any manner or form whatsoever, and declaring all such limitations unlawful and void, with certain exceptions not applicable here.

We have found no error in the rulings and judgment of the court.

No error.