American Silver Manufacturing Company v. Wabash Railroad Company
| Decision Date | 06 May 1913 |
| Citation | 156 S.W. 830,174 Mo.App. 184 |
| Parties | AMERICAN SILVER MANUFACTURING COMPANY, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.
Reversed and remanded. (with directions).
James L. Minnis, N. S. Brown and Bates, Blodgett, Williams & Davis for appellant.
(1) We assert that where the plaintiff not only declares upon a special contract with a carrier, but further offers the contract in evidence and expressly during the trial disclaims any intention to depart from or vary its terms, he thereby affirms its validity and must abide by its terms. Railroad v. Paramore, 119 Ga. 690; Wetsell v Dinsmore, 4 Daly (N.Y.), 195; Inman v. Seaboard Airline, 159 F. 960; Chlanda v. Transit Co., 214 Mo. 260; Fox v. Windes, 127 Mo. 512. (2) A shipment by rail from the city of St. Louis, Missouri, to the city of Peoria, Illinois, is an interstate commerce shipment and controlled by the interstate commerce acts of Congress so far as their provisions are applicable. These acts are found in 3 U. S. Compiled Statutes, pages 3153, et seq., and 1911 Supplement thereto, pages 1284, et seq. (a) Both railroads and shippers in interstate shipments are bound by the established rates, any contract to the contrary notwithstanding. Railroad v. Abilene, etc., Co., 204 U.S. 426, 445; Railroad v. Oil Mills, 204 U.S. 449, 451; Railroad v. Albert Com. Co., 223 U.S. 573, 594, 596; U. S. v. Millar, 223 U.S. 599; Robinson v. Railroad, 222 U.S. 506. (b) Both shipper and railroad are bound by the obligation of the railroad, incurred, under the established rates and classifications and regulations, by the road's accepting the shipments and receiving or charging the rates. Railroad v. Wallace, 223 U.S. 481; Railroad v. Riverside Mills, 219 U.S. 186; Railroad v. Abilene Oil Mill, 204 U.S. 426, 440. (c) That which the shipper becomes entitled to from the railroad by paying the rates charged is of necessity as much regulated by the interstate commerce acts as the rates, for rates, without rights acquired therefor, or distinct from the particular rights accruing therefor, is meaningless. (d) No arrangement of the shipper or the railroad is valid which works an unjust discrimination. Interstate Commerce Acts of Congress. (e) At the trial appellant offered in evidence printed copies of the rates, classifications and regulations on file with the Interstate Commerce Commission, certified to by the secretary of that commission, as true copies of the records, and showed that they were open for inspection at the office in St. Louis where the goods were shipped. This was sufficient proof of the establishment of such rates, classifications and regulations. Railroad v. Albers Com. Co., 223 U.S. 573, 594; Railroad v. Oil Co., 204 U.S. 449.
A. M. Frumberg, R. P. Spencer and A. R. Russell for respondent.
(1) Plaintiff's demurrer to defendant's special defense was properly sustained: (a) Because it fails to show that there was an actual and reasonable valuation placed upon the goods. In re Released Rates, 13 Interstate C. C. R. 556; Hutchinson on Carriers, sec. 427; Railroad v. Jones, 132 Ala. 437; Railroad v. Huslett, 112 Tenn. 348; Railroad v. McIntire, 82 S.W. 346; Lace Curtain Mills v. Navigation Co., 145 F. 701; Hohl v. Norddeuscher Lloyd, 169 F. 990; Doyle v. Railroad, 126 F. 841; Railroad v. Lockwood, 84 U.S. 357; Leas v. Railroad, 157 Mo.App. 155, 136 S.W. 963. (b) Because it alleged nothing more than an implied contract based upon constructive notice to the shipper by the publication of rates and classification and did not allege an express and special contract limiting the liability of the defendant. Glass Co. v. Railroad, 156 Mo.App. 178, 136 S.W. 757. (c) It did not allege that two or more rates existed and that plaintiff had accepted the lower rate. Leas v. Railroad, 157 Mo.App. 155, 136 S.W. 963; George v. Railroad, 214 Mo. 551. (d) The facts alleged in the answer do not show that defendant was a special and not a common carrier of goods. Moore on Carriers, 101; Hutchinson on Carriers, sec. 153; Railroad v. Lockwood, 84 U.S. 507; Steam Co. v. Phoenix Ins. Co., 129 U.S. 441. (2) Plaintiff is not bound by invalid or illegal provisions inserted in the bill of lading. Powder Mfg. Co. v. Railway Co., 101 Mo.App. 442, 196 Mo. 663. (3) No immunity or privilege created by the interstate commerce law having been asserted or denied or involved in this action, the rights and liabilities of the parties are to be determined by the law of this State. Railroad v. Hughes, 191 U.S. 447; Railroad v. Solan, 169 U.S. 133; Railroad v. Tobacco Co., 169 U.S. 311; Railroad v. Haver, 169 U.S. 613; Calderon v. Steamship Co., 170 U.S. 272; Railroad v. Ohio, 173 U.S. 285; Railroad v. Illinois, 177 U.S. 514; United States v. Thompson, 93 U.S. 587; Latta v. Railroad, 172 F. 850.
NORTONI, J.--This is a suit for damages accrued through the alleged breach of a contract pertaining to an interstate shipment of freight. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is a manufacturer of silver plated ware in St. Louis and defendant is a common carrier engaged in interstate traffic. The shipment involved three boxes of silver plated ware from St. Louis, Missouri, to Peoria, Illinois, two of which boxes were lost in transit, and for the alleged value of these--that is $ 4764.04--the suit is prosecuted. There is no suggestion in the case that the loss occurred through negligence. Indeed, it is not revealed how nor where the goods were lost, but it does appear they were lost in transit through some means while in the possession of the carrier and therefore never delivered.
The suit proceeds as in assumpsit for the alleged value of the goods lost--that is $ 4764.04--invoking the obligation of an insurer, which, it is said, inheres in the transaction because of its nature and that of defendant's calling. Defendant had fully complied with the requirements of the Interstate Commerce Act and filed with the Interstate Commerce Commission its tariff sheets including rates, schedules and classifications pertaining to such shipments of interstate freight, and such rates, schedules and classifications had been duly approved by the commission and were posted, in accordance with the provision of law, in defendant's freight depot in St. Louis at the time the contract of affreightment was made. By these schedules and classifications so on file and promulgated, defendant had established two rates of freight with respect to such shipment between St. Louis and Peoria, Illinois, which, together with the conditions and classifications attached thereto and revealed in the tariff sheets, had been duly approved by the Interstate Commerce Commission. One of these rates, that is the lower, it appears, was fixed, determined and approved, together with the condition annexed thereto, to the effect the carrier's liability should be limited thereunder in accordance with the classification and schedules revealed in the tariff sheets, while the other, or higher rate, was fixed, determined and approved as a proper compensation for carriage with the full carrier's liability annexed. The tariff sheets and classifications therein contained provide that all shipments made under the lower rate shall be subject to a maximum liability for loss of goods on the part of the carrier of ten times the freight paid. The higher rate provided in the tariff sheets is double the reduced rate referred to and is without limitations as to carrier's liability annexed--that is, such rate is available to all persons desiring to ship, without any limitation as to the right of the shipper under the law, in event of loss of or damage to his goods while in possession of the carrier.
It appears plaintiff, by its manager, delivered the consignment of plated ware to defendant at its freight office in St. Louis, and, indicating his purpose to ship it to Peoria, Illinois, requested a bill of lading therefor. Upon defendant's agent inquiring the character of the goods and their value, plaintiff's manager replied that the consignment consisted of plated silverware and its value was "close to $ 5000." Thereupon defendant's agent issued to plaintiff the shipping contract in suit here, which is an ordinary bill of lading, describing the shipment as three boxes of plated ware, but without fixing any value thereon whatever. Defendant's agent exacted a freight charge for the through shipment of $ 4.17, which plaintiff paid at the time. Such is the lesser tariff rate fixed for such shipments under the limitations on the carrier's liability above stated. There is no suggestion in the bill of lading as to the actual value of the goods, nor is there anything contained therein, pertinent to the present controversy, resembling an agreed valuation as the amount recoverable in event of loss, save an apt reference to the valuation determined by the classifications or tariffs upon which the rate of freight is based. The bill of lading recites defendant "received" the consignment "subject to the classifications and tariffs in effect on the date of issue of this original bill of lading." One of the conditions printed in the bill of lading touches upon the subject of agreed valuation, and, in so far as pertinent here, refers to the classifications and tariffs upon which the rate of freight is based for the criterion to determine the extent of the liability of defendant to compensate the shipper in event the goods are lost or damaged while in its possession. We copy this condition of the contract here, but the italics are our own.
"The amount of any loss or damage for which any carrier is...
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