White v. Southern Ry. Co. , 208 S.C. 319 ( 1946 )

Upon consideration of the Petition for Rehearing in the above-entitled causes, we are of the opinion that there has been no misconception of the questions presented by the appeals. The rights and liabilities of the parties, dependent as they are upon the Acts of Congress, the bills of lading, and the decisions of the Federal Supreme Court, have been correctly determined in the opinion herein, which points out the inapplicability here of the decisions in Anderson v.A.C.L.R. Co., 163 S.C. 350, 161 S.E., 523, and UnionPacific R. Co. v. Burke, 255 U.S. 317, 41 Sup. Ct., 283,65 L.Ed., 656.

The Court did not rely upon the single excerpt from the testimony quoted in the Petition, but upon the entire record, and particularly upon the tariff admitted in evidence containing the provision: "If the consignor declines to release each article in the shipment to a value not exceeding $5.00 per pound, the shipment will not be accepted", which, with the testimony of the Rate Clerk of the initial carrier, given by deposition in both cases, was amply sufficient, in the absence of any showing to the contrary, to establish the existence of alternative rates "on second-hand (used) household or personal effects such as clothing, furniture, or furnishings for residences" ranging between a minimum of ten cents, and a maximum of $5.00, per pound.

The decision in the Burke case, supra, was rested squarely upon the fact that the defendant-carrier's filed and published schedules contained only one rate applicable to the shipment there involved, hence a choice of rates, necessary to support the reduced valuation, was physically impossible.

In the Anderson case, supra, it seems that no effort wasmade by the carrier to show the existence of alternativerates, and the written contract between the parties, evidencedby the original bill of lading — which the plaintiff in that case offered in evidence — fixed no value whatever of thegoods shipped, although the shipping order and memorandum copy, allegedly made as carbon copies thereof, showed a valuation of "$10.00 per cwt.", and the shipper informedthe carrier's agent that he did not want a released shipment,but would "rather pay the high rate and get the goodsthere." Notwithstanding the fact that the original of the written contract fixed no value, the carrier attempted to show that, in fact, the goods had moved under a limited valuation and at a reduced rate. Certainly, under the circumstances disclosed by the evidence, the carrier could notcomplain of the trial judge's "Charge" which permitted the jury to determine whether, in variation of the terms of thewritten contract between the parties, the agreement was one of limited liability based upon an alleged released value not contained in the original bill of lading.

In the cases here, unfortunately for plaintiff, his agents, the shippers, one of whom was a practicing attorney, "signed blank checks", so to speak, when they signed the bills of lading before they were completed in every detail,and, in the absence of fraud, false billing, or an attempt at rebating, prepayment by the shippers (after the completionof the bills of lading) of the freight (carrying) charges, calculated upon any lawful rate inserted in the bills before such payment, without objection on the part of the shipper, and not in violation of any instruction given by him, is binding upon all parties, shipper, consignee, and carrier. It is elementary that, if the contracting party is in position to learn the contents of a written contract and thereby protect himself by reading it or having it read, one who is unable to read is bound to have the instrument read to him before signing it, just as one who can read is bound to read it before signing. So, also, if one sign a contract before it is completely filled out, he is bound thereby, in the absence of fraud. As said by the late Mr. Justice Watts, afterwards beloved Chief Justice, in Colt Company v. Kinard, 126 S.C. 205,119 S.E., 581, "The courts enforce contracts, but parties make them".

Plaintiff pitched his right to recover the alleged "full actual loss, damage, or injury" upon what is known as the "First Cummins Amendment" (4 March, 1915) to the "Carmack Amendment" of 29 June, 1906, while defendant sought refuge under the "Second Cummins Amendment" (9 August, 1916). Under the Carmack Amendment, limitations of carriers' liability was approved by the Federal Supreme Court in a long line of decisions. The First Cummins Amendment, as pointed out in Peyton v. Railway ExpressAgency, cited in the opinion herein, prohibited in general any such limitation of liability, while the Second Cummins Amendment practically nullified the First and "substantially restored the rule of Adams Exp. Co. v. Croninger,supra," in those cases where limitation of liability is authorized. Particular attention is redirected to Western UnionTel. Co. v. Esteve Bros. Co., American Ry. Exp. Co. v.Lindenburg, Id. v. Daniel, and Peyton v. Ry. Exp. Agency, all decided since the passage of the Second Cummins Amendment, and since the decision in Union Pac. R. Co. v. Burke.

As to the suggestion — not stressed in respondent's brief or in argument at the bar — that defendant failed to prove that the alternative rates used by it and available to plaintiff, had he requested same, had actually been filed and approved by the Interstate Commerce Commission, we have held that the record shows that alternative rates had been filed, and that they had been and were being used by the carrier. Hence, it might be presumed that such rates had been approved by the Commission, because, under the Federal decisions, "It cannot be assumed, merely because the contrary has not been established by proof, that an interstate carrier is conducting its affairs in violation of law. Such a carrier must comply with the strict requirements of the Federal statutes, or become subject to heavy penalties, and in respect to transactions in the ordinary course of business,it is entitled to the presumption of right conduct". C.N.O. T.P. Ry. Co. v. Rankin, 241 U.S. 319,36 Sup. Ct., 555, 60 L.Ed., 1022. But, as heretofore pointed out,the tariff, itself, admitted in evidence, certified to by theSecretary of the Commission, showed the existence of alternativerates, and it must be assumed that tariffs and schedulescertified to by the Commission have been approved bythat body.

Because the cases appear to be hard ones for the plaintiff, and because this court does not look with favor upon contracts limiting the liability of common carriers and public service corporations, we have expressed ourselves at a length not customary in refusing a Petition for Rehearing. We have no doubt, however, that the issues involved have been determined in accordance with the decisions of the Federal Supreme Court.

PETITION REFUSED.