Alwine v. Pennsylvania Railway Co.

• Decision Date: 03 October 1940
• Docket Number: 37-1940
• Parties: Alwine et al. v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Superior Court

15 A.2d 507

141 Pa.Super. 558

Alwine et al. v. Pennsylvania Railroad Company, Appellant

No. 37-1940

Superior Court of Pennsylvania

October 3, 1940

Argued March 18, 1940.

Appeal from judgment of C. P. Dauphin Co., June T., 1936, No. 236 in case of H. K. Alwine et al., trading as C. S. Erb &amp Company v. Pennsylvania Railroad Company.

Assumpsit. Before Greer, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiffs. Plaintiff appealed.

Error assigned was refusal of judgment n. o. v.

Judgment reversed.

Windsor F. Cousins, with him Nauman, Smith & Hurlock, for appellant.

Wm. H Earnest, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.

OPINION

Parker, J.

One question of law is raised by this appeal. Is the delivering carrier of a shipment of cattle consigned by the owners to themselves on a through bill of lading from Canada to a point in Pennsylvania liable to the owners for damages not occurring on the lines of that carrier but within the United States on the lines of an intermediate carrier?

The essential facts are not in dispute as they were agreed upon by stipulation for the purposes of this appeal. The shipment originated about August 29, 1934, at Stratford, Ontario, Canada, when a through bill of lading was delivered by the initial carrier, Canadian National Railways, to the plaintiffs which stipulated that "no carrier shall be liable for damage or injury not occurring on its portion of the through route .... except as such liability is or may be imposed by law. Unless a different agreement is made with connecting carriers, in respect to transportation on their respective lines, the terms and conditions hereof shall apply to the transportation by each carrier on any portion of the route to destination." The form of the contract was published in tariffs filed with the Canadian Railway Commission and the Interstate Commerce Commission. This bill of lading specified Middletown, Pennsylvania, as the destination and the defendant as the delivering carrier. The shipment passed over the Canadian Railway to Black Rock, New York, where it was delivered to New York Central Railroad Company which transported the freight from there to Buffalo, New York, when it delivered it to defendant which, in turn, transported it to the destination. Certain of the cattle were injured while in the custody of the intermediate carrier and this action is brought to recover the resulting damages.

Suit having been brought against the defendant by the owners, who were both consignors and consignees, a verdict was rendered for plaintiffs and a court of common pleas refused defendant's motion for judgment n. o. v. Such refusal is assigned as error. The motion was refused on the ground that under an amendment to the Interstate Commerce Act (49 USCA § 20, par. [11] and [12]) the delivering line is responsible for all damages caused by any of the participating carriers, with right of recoupment against the carrier on whose line the damages occurred.

The appellees and the court below relied, in support of their conclusion, exclusively on the principles announced in Galveston, H. & S. A. Ry. Co. v. Woodbury, 254 U.S. 357, 41 S.Ct. 114, 65 L.Ed. 301. As we are all of the opinion that the Woodbury case and the principles enunciated therein are not applicable to the facts in this case and that the plaintiffs are not entitled to recover, it will be necessary to examine the entire subject presented that we may answer the question posed and show that the Woodbury case does not rule this case.

The entire controversy depends upon a proper construction of a part of § 20, par. (11), of the Interstate Commerce Act, printed in the margin. ^[1]

"The settled federal rule is that, in the absence of statute or special contract, each connecting carrier on a through route is bound only to safely carry over its own line and safely deliver to the next connecting carrier": Oregon-Washington R. & Nav. Co. v. McGinn, 258 U.S. 409, 413, 42 S.Ct. 332, 66 L.Ed. 689; Michigan Cent. R. Co. v. Myrick, 107 U.S. 102, 107, 1 S.Ct. 425, 429, 27 L.Ed. 325; Michigan Cent. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. 318, 324, 21 U.S. S. C. Reports 297. Originally the liability of a connecting carrier for the safety of property delivered to it for transportation commenced when it was received and ended when it was delivered to and accepted by a succeeding carrier: Pratt v. Grand Trunk Ry. Co., 95 U.S. 43, 24 L.Ed. 336.

The special contract disclosed by this bill of lading placed no additional responsibility in that respect on the delivering line. On the contrary, it provided against the liability sought by the plaintiffs to be imposed on defendant. So far as we have been able to discover, the Interstate Commerce Act is the only statute dealing with the liability of the respective carriers in a shipment of this character so we are required to determine whether that statute makes the delivering line responsible for damages occurring within the United States on lines of a preceding carrier where the shipment originates in an adjacent foreign country and is consigned under a through bill of lading. As we are all of the opinion that the court below erred in sustaining the shipper's contention that the decision in the Woodbury case, supra, is applicable here, it becomes necessary to construe the section of the Commerce Act involved. By considering the subject in that order we will be placed in a better position to determine the pertinence of the Woodbury case.

The section deals only with such shipments over two or more lines as are made on a through bill of lading. In precise words it describes the carriers and transportation to which the terms and provisions apply, dealing with shipments within the United States between different states, territories, and the District of Columbia and with shipments from any point in the United States to a point in an adjacent foreign country. Where transportation to or from a foreign country is not involved the direction becomes immaterial and it is clear that it applies to movements in any direction. When it turns to the subject of shipments involving adjacent foreign territory the words very definitely limit the application to movements to a foreign country.

There is not the slightest ambiguity in the use of the language employed and it would grossly distort the meaning to add to the field shipments from an adjacent foreign country to a point in the United States. This conclusion is supported when we note the studied effort of Congress to avoid any misunderstanding as to the limits within which the amendment is to apply. To disregard the plain words used would be equivalent to judicial legislation. The rule followed in all jurisdictions is stated in § 51 of our Statutory Construction Act (46 PS § 551): "When the words of a law are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."

Even if we have resort to auxiliary rules of construction they will confirm our conclusion. In case of ambiguity resort may be had to the history of the statute: Prussian v. United States, 282 U.S. 675, 678, 51 S.Ct. 223, 75 L.Ed. 610.

By the Carmack amendment to the Hepburn Act of June 29, 1906, c. 3591, 34 Stat. 593, responsibility for damages was placed upon the initial line with respect to transportation wholly within the United States. It was held that this legislation was not applicable to any part of transportation to a foreign country: J. H. Hamlen & Sons Co. v. Ill. Cent. R. Co., 212 F. 324. The result was a further amendment.

By the Cummins amendment of March 4, 1915, the field was extended to include transportation to a foreign country on a through bill of lading. The scope of the act was considered by the Interstate Commerce Commission in Bills of Lading Cases, 52 I.C.C. 671, 683 (April 14, 1919), where it said: "On March 4, 1915, Congress enacted the first Cummins amendment, so called, which became effective June 2, 1915, 38 Stat. L. 1196. It extended the territorial application of the provisions of the Carmack amendment to the transportation of goods within the territories of the United States, the District of Columbia, or to goods exported to adjacent foreign countries ...." (Italics supplied.)

This was a definite expression to the effect that the law at the time dealt only with exports to a foreign adjacent country. Such was the interpretation of the chapter by the agency of the federal government designated by Congress to administer the act. Bills of lading were provided for and in that immediate connection liability for damages was fixed, the area covered being the same as in the preceding amendment. The practice with relation to form and substance of bills of lading, in that they attempted to limit liability only as to exports and not as to imports, was well established when Congress again amended the chapter.

By the Newton amendment of March 4, 1927 (c. 510, 44 Stat. 1448), a further change was made by making the transportation company delivering the property liable for damages occurring on lines of a preceding carrier where a through bill of lading was issued. The identical language defining the field of transportation with respect to exports to foreign countries was repeated. As the change was made to place further liability on carriers with a presumed knowledge of the practice prevailing and various decisions of the courts, it is only fair to assume that Congress would have extended the act so as to cover imports from foreign adjacent countries had they deemed that the public interest required it and it was proper so to do.

The evidence shows that the Canadian ...