Chicago, Burlington & Quincy Railroad Company v. Gardiner

• Decision Date: 17 March 1897
• Docket Number: 7056
• Citation: 70 N.W. 508,51 Neb. 70
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. J. A. GARDINER ET AL
• Court: Nebraska Supreme Court

70 N.W. 508

51 Neb. 70

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. J. A. GARDINER ET AL

No. 7056

Supreme Court of Nebraska

March 17, 1897

ERROR from the district court of Adams county. Tried below before BEALL, J. Affirmed.

AFFIRMED.

A. W Agee, J. W. Deweese, and F. E. Bishop, for plaintiff in error:

The contract is valid under the laws of Illinois, where it was made, and is enforceable in this state. (Hazel v Chicago, M. & St. P. R. Co., 48 N.W. [Ia.], 926; Fairchild v. Philadelphia, W. & B. R. Co., 24 A [Pa.], 79; Chicago & N. W. R. Co. v. Chapman, 30 Ill.App. 504; Black v. Wabash, St. L. & P. R. Co., 111 Ill. 350; Wendall v. Osborne, 18 N.W. [Ia.], 709; German Ins. Co. v. Davis, 40 Neb. 701.)

The provision of the contract limiting the liability of the carrier to the agreed value of the horse is valid and binding. (Hart v. Pennsylvania R. Co., 112 U.S. 331; Pacific Express Co. v. Foley, 26 P. [Kan.], 665; Coupland v. Housatonic R. Co., 23 A. [Conn.], 870; Ballou v. Earle, 22 A. [R. I.], 1113; Boorman v. American Express Co., 21 Wis. 154; Abrams v. Milwaukee, L. S. & W. R. Co., 58 N.W. [Wis.], 780; Starnes v. Louisville & N. R. Co., 19 S.W. [Tenn.], 675; Louisville & N. R. Co. v. Wynn, 14 S.W. [Tenn.], 311; Zouch v. Chesapeake & O. R. Co., 15 S.E. [W. Va.], 185; Durgin v. American Express Co., 20 A. [N. H.], 328; Moulton v. St. Paul, M. & M. R. Co., 31 Minn. 85; Hutchinson v. Chicago, St. P., M. & O. R. Co., 35 N.W. [Minn.], 433; Louisville & N. R. Co. v. Sherrod, 4 So. Rep. [Ala.], 29; Johnstone v. Richmond & D. R. Co., 17 S.E. [S. Car.], 512; Zimmer v. New York C. & H. R. R. Co., 33 N.E. [N. Y.], 642; Richmond & D. R. Co. v. Payne, 10 S.E. [Va.], 749; Harvey v. Terre Haute & I. R. Co., 74 Mo. 538; Brchme v. Adams Express Co., 25 Md. 329; Baltimore & O. S.W. R. Co. v. Ragdale, 42 N.E. [Ind.], 1106; Hill v. Boston, H. T. & W. R. R. Co., 10 N.E. [Mass.], 836; Smith v. American Express Co., 66 N.W. [Mich.], 479; Albers v. Western Union Telegraph Co., 66 N.W. [Ia.], 1040.)

The provision requiring notice of damage to be given to the carrier within ten days is binding. (Sherrill v. Western Union Telegraph Co., 109 N. Car., 527; Young v. Western Union Telegraph Co., 65 N.Y. 165; Massengale v. Western Union Telegraph Co., 17 Mo. App., 259; Gulf, C. & S. F. R. Co. v. Frawick, 68 Tex. 314; Chicago & A. R. Co. v. Simms, 18 Ill.App. 68; Black v. Wabash, St. L. & P. R. Co., 111 Ill. 351; Southern Express Co. v. Caldwell, 21 Wall. [U. S.], 264; Hart v. Western Union Telegraph Co., 6 P. [Cal.], 637; Heimann v. Western Union Telegraph Co., 57 Wis. 564; Goggin v. Kansas P. R. Co., 12 Kan. 416; Western Union Telegraph Co. v. Meredith, 95 Ind. 93; Cole v. Western Union Telegraph Co., 33 Minn. 227; Hill v. Western Union Telegraph Co., 85 Ga. 425; Western Union Telegraph Co. v. Dunfield, 11 Colo. 335; Weir v. The Express Co., 5 Phila. [Pa.], 355; Sprague v. Missouri P. R. Co., 34 Kan. 347; Rice v. Kansas P. R. Co., 63 Mo. 314; Western Union Telegraph Co. v. James, 16 S.E. [Ga.], 83; Western Union Telegraph Co. v. Phillips, 21 S.W. [Tex.], 638; Armstrong v. Chicago, M. & St. P. R. Co., 54 N.W. [Minn.], 1059; Gulf, C. & S. F. R. Co. v. Wright, 21 S.W. [Tex.], 80; Western Union Telegraph Co. v. Dougherty, 15 S.W. [Ark.], 468; Beasley v. Western Union Telegraph Co., 39 F. 181; Western Union Telegraph Co. v. Yopst, 20 N.E. [Ind.], 222.)

The shipment of live stock is peculiarly a matter of contract fixing the terms, rates, and liabilities, in absence of express statute. The contract is not immoral, criminal, or in violation of any rule of public policy which should deny its being effective. (Griswold v. Illinois C. R. Co., 57 N.W. [Ia.], 843; Coupland v. Housatonic R. Co., 61 Conn. 531; Black v. Chicago, B. & Q. R. Co., 30 Neb. 197; Heller v. Chicago & G. T. R. Co., 3 Am. & Eng. R. Cas., n. s. [Mich.], 602; Hart v. Pennsylvania R. Co., 18 Am. & Eng. R. Cas. [U. S.], 608; Sharer v. Pennsylvania Co., 71 F. 937; State v. Julow, 31 S.W. [Mo.], 781; Forepaugh v. Delaware, L. & W. R. Co., 40 Am. & Eng. R. Cas. [Pa.], 78; Western & A. R. Co. v. Exposition Cotton Mills Co., 35 Am. & Eng. R. Cas. [Ga.], 603; Fonseca v. Cunard Steamship Co., 27 N.E. [Mass.], 665; O'Regan v. Cunard Steamship Co., 160 Mass. 356.)

The contract is valid in Illinois and should be held valid in Nebraska. (Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397; Heller v. Chicago G. T. R. Co., 3 Am. & Eng. R. Cas., n. s. [Mich.], 599; Hart v. Pennsylvania R. Co., 112 U.S. 331; Ryan v. Missouri P. R. Co., 23 Am. & Eng. R. Cas. [Tex.], 706; Grand v. Livingston, 38 N. Y. Sup., 490; Fairchild v. Philadelphia, W. & B. R. Co., 24 A. [Pa.], 79; Hazel v. Chicago, M. & St. P. R. Co., 82 Iowa 477; Pennsylvania R. Co. v. Fairchild, 69 Ill. 260; Texas & P. R. Co. v. Davis, 2 Tex. App., 156; Hartmann v. Louisville & N. R. Co., 39 Mo. App., 88; Gibson v. Connecticut Fire Ins. Co., 77 F. 565; The Majestic, 60 F. 627; Wupperman v. The Carib Prince, 63 F. 267; Otis Co. v. Missouri P. R. Co., 112 Mo. 622; Merchants Dispatch Co. v. Furthman, 61 Am. & Eng. R. Cas. [Ill.], 145; International & G. N. R. Co. v. Moody, 35 Am. & Eng. R. Cas. [Tex.], 607; Meuer v. Chicago, M. & St. P. R. Co., 2 Am. & Eng. R. Cas., n. s. [S. Dak.], 493.)

J. A. Gardiner and J. B. Cessna, contra.

OPINION

The opinion contains a statement of the case.

RYAN, C.

This action was brought in the district court of Adams county for the value of a horse alleged to have been injured so as to have been rendered worthless on the line of railway of plaintiff in error while in transit between Peoria, Illinois and Hastings, in this state. There was a verdict against the railroad company in the sum of $ 650. To reverse the judgment thereon rendered the railroad company has prosecuted this proceeding in error.

The matters in defense will now be separately considered. The contract of shipment provided that in cases where no rate was expressly inserted therein the value of each horse was agreed to be $ 100, and in this connection was the following language: "And that the above rate of transportation is based upon the agreement that in case of loss or damage, whether resulting from accident or negligence of said railroad company or its servants, said railroad company does not assume a liability for such loss or damage to exceed the valuation of each animal." There was a further provision that in case of damage sustained, a written claim therefor, verified by affidavit, should be presented to the railroad company's general freight agent at Chicago or to the station agent, in this instance at Hastings, within ten days after the removal of the animal from the car in which it had been shipped. There was evidence of an oral notice of the character above indicated, within the time fixed, to the local agent at Hastings, through whose procurement an examination was at once made of the condition of the horse, and thereupon immediate steps were taken by the railroad company for the relief of the injuries which the horse had sustained. It was not shown that if there had been a technical compliance with the terms above prescribed there would have been taken any other steps than those which were taken. Under these circumstances we do not think that the failure to give a written notice, based upon an affidavit, was an indispensable condition precedent to a right of recovery. (Wabash R. Co. v. Brown, 152 Ill. 484, 39 N.E. 273.)

Plaintiff in error contended by its answer in the district court, as it does in argument in this court, that by the decisions of the courts of Illinois, introduced in evidence, the restriction of the liability of a common carrier to the value fixed in the contract of shipment was enforceable in that state, and consequently should be enforced in this state. In Chicago, R. I. & P. R. Co. v. Witty, 32 Neb. 275, 49 N.W. 183, there was under consideration very much the same circumstances as are now under consideration, except that there was in that case no averment or proof as to the law of Illinois being different from that of Nebraska with respect to the right of a common carrier, by contract, to limit its liability for negligence. It was held that no such restriction could be made under the laws of this state, and this ruling has been followed and approved in Atchison T. & S. F. R. Co. v. Lawler, 40 Neb. 356, 58 N.W. 968. The question now presented is whether or not our conclusion thus announced should be held to be subject to a modification on account of the alleged difference between the laws of Illinois and those of Nebraska. The defendant in error, to show that there is no difference between the holding of the courts of Illinois and the holding of this court in Chicago, R. I. & P. R. Co. v. Witty, supra, in the respect indicated, offered in evidence, among other language of the appellate court of Illinois, that found on page 523 of the case of Chicago & N. W. R. Co. v. Chapman, 30 Ill.App. 504. From this language offered in evidence we quote the following: "We hold that while common carriers cannot, under the law, be permitted to fix, arbitrarily, the prices on freight they ship at prices below the real value, without the full, free, and voluntary consent of the shipper, fairly and understandingly entered into, and with the purpose of fixing its value, yet we also hold that common carriers have a lawful right to demand and require of the shipper a correct and honest statement of the actual value of his merchandise, and to insert such value in the bill of lading, and then to charge the shipper a just and reasonable compensation in proportion to the risk they assume in transporting his property. By such value when so fixed the shipper should be bound in case of loss or injury to his property, although the...