Adams Express Co. v. Cook

• Decision Date: 09 February 1915
• Citation: 172 S.W. 1096,162 Ky. 592
• Parties: ADAMS EXPRESS CO. v. COOK.
• Court: Kentucky Court of Appeals

172 S.W. 1096

162 Ky. 592

ADAMS EXPRESS CO. v. COOK.

Court of Appeals of Kentucky.

February 9, 1915

Appeal from Circuit Court, Shelby County.

Action by J. C. Cook against the Adams Express Company. From an adverse judgment, defendant appeals. Reversed, and new trial directed.

Jos. S Graydon and Lawrence Maxwell, both of Cincinnati, Ohio, and Willis, Todd & Bond, of Shelbyville, for appellant.

Beard &amp Pickett, of Shelbyville, for appellee.

NUNN J.

Appellee Cook, recovered judgment against the express company for $1,500 damages, the full amount claimed in his petition. The action was to recover for alleged injury to horses caused by delay in moving them to destination, and negligence of appellant's servants in caring for them while in transit. The shipment was a car load of horses billed from Shelbyville, Ky. to Boston, Mass., and was made upon a written contract. The petition was a simple one to recover damages for breach of this contract, and sought to recover the whole loss. From the petition it appeared that the writing was in possession of the company. The company answered, admitting the contract, and filed it as an exhibit. Besides controverting the negligence and damage, it averred that it was a common carrier engaged in interstate commerce and that the shipment in question was interstate, and that the contract limited liability for loss or damage to $100 for each horse, that being the value of each as declared by Cook; that it was in consideration of such declared value and liability so limited that the company agreed to carry at the rate stipulated, which was less than the rate charged for carrying horses of a greater value. It also pleaded and relied upon a clause in the contract absolving it from liability unless written notice of claim for loss or damage be given within 30 days after the loss or damage occurred. It was further alleged that Cook had failed to give such notice within that time. It alleged that it had a right to make a contract limiting liability, and that it was binding on both the carrier and shipper, because it had prior thereto, as required by the act of Congress, and the rules and regulations of the Interstate Commerce Commission, posted and filed a tariff or schedule of rates between the points in question, showing a scale of rates graduated according to value of horses shipped, and that, in order to obtain a lesser rate, Cook declared the value named and agreed to limit liability for loss to that extent.

Cook, by reply, admitted the contract and interstate character of the shipment, but controverted every other allegation of the answer, even the negative averment that he had not given written notice of the loss within 30 days. Then he pleaded affirmatively that he did give the notice, showing the manner of it, and in effect claiming that the facts which he alleged made the notice equivalent to a written notice. He especially denied that the appellant had any system of rates graduated according to value between Shelbyville and Boston, or that he declared any value on the horses, or that he had any choice of rates, or was given the opportunity of election between rates, or that he elected to ship at the alleged lowest rate applicable to a valuation of $100 per head.

With the issues thus joined, the appellant introduced no proof to show that it had filed with the Interstate Commerce Commission, or posted, or maintained any tariffs or schedule of rates, graduated or otherwise. Nor did Cook offer any evidence to show that he had given any notice of the claim for loss or damage. There was absolutely no proof offered by either party in regard to notice or graduated tariffs. Under these circumstances, the court in instructing the jury, ignored both propositions. In substance, the jury were told that, if they believed from the evidence that the horses were injured by the negligence of appellant or its servants, they should find for Cook such damage as he sustained by reason thereof, not exceeding $1,500, the amount claimed in the petition. Appellant asked for a peremptory instruction, because there was no proof of notice, and therefore it claimed that, under the contract, Cook had not shown himself entitled to recover. The peremptory instruction being refused, the court was asked to instruct the jury to limit recovery to $100 on each animal injured. As above indicated, this was also refused.

It was the view of the lower court that, when the appellant failed to show that it had conformed to the Interstate Commerce Law by filing its schedule of graduated rates with, and getting the approval of, the Interstate Commerce Commission, it therefore did not establish a right to make a contract limiting its common-law liability as to the amount of damages recoverable, or a right to require notice of loss. In other words, the lower court held that, in the absence of such proof by appellant, the provisions of section 196, Kentucky Constitution, were applicable and controlling in this case. Prior to the enactment of the Interstate Commerce Law it was held in this state that such stipulations were in violation of section 196 of the Constitution, which provides that no common carrier shall be permitted to contract for relief from its common-law liability. O. & M. Ry. Co. v. Tabor, 98 Ky. 503, 32 S.W. 168, 36 S.W. 18, 17 Ky. Law Rep. 568, 1411, 34 L.R.A. 685; Brown v. I. C. R. R. Co., 100 Ky. 525, 38 S.W. 862.

But the Hepburn law, and the Carmack amendment of 1906 (U. S. Comp. St. 1913,§§ 8563-8604) manifest a purpose on the part of Congress, as has been frequently held by the United States Supreme Court, to take exclusive control of interstate commerce, including the liability of a common carrier for loss or damage to an interstate shipment, and to supersede all state legislation upon the same subject, including provisions of state Constitutions, or laws invalidating contracts limiting the carrier's liability to agreed values. Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257; K. C. So. Ry. Co. v. Carl, 227 U.S. 652, 33 S.Ct. 391, 57 L.Ed. 683; M., K. & T. v. Harriman, 227 U.S. 669, 33 S.Ct. 397, 57 L.Ed. 690; C., B. & Q. Ry. v. Miller, 226 U.S. 517, 33 S.Ct. 155, 57 L.Ed. 323; C., St. P., M. & O. Railroad v. Latta, 226 U.S. 519, 33 S.Ct. 155, 57 L.Ed. 328; L. & N. v. Miller, 156 Ky. 677, 162 S.W. 73, 50 L.R.A. (N. S.) 1208; Robinson v. L. & N., 160 Ky. 235, 169 S.W. 831; Howard & Callahan v. I. C., 161 Ky. 783, 171 S.W. 442.

We quote from the Croninger Case with reference to the acts of Congress referred to:

"That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. * * * Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulations with reference to it. Only the silence of Congress authorized the exercise of the police powers of the state upon the subject of such contracts. But, when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the state ceased to exist."

It appears, therefore, that the federal law is now the whole law regulating and controlling interstate shipments. It was enacted without condition or reservation, and its force and scope is not dependent upon acceptance of its terms by carrier or shipper. The law makes it their duty to comply with it. It is not within the power of either the shipper or carrier, by contract or otherwise, to choose between the application of the state and federal laws. Intrastate shipments are governed by the law of the state, but as to interstate shipments the federal law only applies, because it is self-operative, and has superseded all state law in that regard. The character of the shipment--that is, whether it is state or interstate--determines the question as to which law is applicable. St. L., S. F. & T. Ry. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann.Cas. 1914C, 156; Pederson v. D., L. & W. R. R., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, Ann.Cas. 1914C, 153.

Therefore in an interstate shipment, the...