Grant v. Am. Ry. Express Co.

• Decision Date: 02 January 1928
• Parties: GRANT v. AMERICAN RY. EXPRESS CO.
• Court: Maine Supreme Court

139 A. 784

GRANT

v. AMERICAN RY. EXPRESS CO.

Supreme Judicial Court of Maine.

Jan. 2, 1928.

Report from Supreme Judicial Court, Hancock County, at Law.

Action by Harry F. Grant against the American Railway Express Company. On report by the nisi prius justice with assent of the parties for decision on the legally admissible evidence. Judgment for defendant.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

Fellows & Fellows, of Bangor, for plaintiff.

Ryder & Simpson, of Bangor, for defendant.

DUNN, J. This action comes here on report by the nisi prius justice with the assent of the parties for decision on the legally admissible evidence. R, S. c. 82, § 46.

Harry F. Grant, a breeder of dogs, seeks to recover from the American Railway Express Company, a common carrier, damages for the loss in transit of his brood bitch, the interstate carriage whereof that company had undertaken for hire.

The declaration is in tort. There are two counts. One differs from the other essentially only in alleging that notice and filing of the plaintiff's claim for damages were timely, and that the present action was seasonably begun. The first count is for full common-law liability. The second, by its allegations respecting preliminary notice and the beginning of suit, impliedly recognizes the Interstate Commerce Act, an enactment by the Congress of the United States. 24 U. S. Stat. L. 379, and acts amendatory; U. S. Code, title 49 (49 USCA § 1 et seq.; Comp. St. § 8563 et seq.). Both counts contemplate liability, through Want of care and diligence of the carrier's antecedent duty to transport safely and deliver the property intrusted to its care. Defendant pleads the general issue.

The case being up on report, the underlying proposition, whether liability be established, may have consideration directly. Folsom v. Smith, 113 Me. 83, 92 A. 1003.

Palling within that class, wherein the jurisdiction of the Congress is exclusive, the controversy must be decided by federal law. Adams Express Co. v. Croninger, 226 U. S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257. Our state rules, thus to designate those of the forum, may have no other office than to regulate the evidence and the procedure. Cincinnati, N. C. & T. P. R. Co. v. Rankin, 241 U. S. 319, 36 S. Ct. 555, 60 L. Ed. 1022; Continental P. B. Co. v. Maine C. R. Co., 115 Me. 449, 99 A. 259.

There is small conflict in the evidence. On November 20, 1925, plaintiff took his bitch to the receiving office of the defendant in Bucksport, Me. The dog was inclosed in a double-lathed crate. The plaintiff says, in evidence, that the crate, which was originally well made, had been used by him without mishap to ship singly three or four other dogs, as the agent knew, and that it was in fit condition for shipping this dog.

At the express, though the shipper may not have stated that the crate was secure, he so implied. The plaintiff testifies that the agent, on looking at the crate, agreed that it appeared to be "all right." If the crate were insecure, apparently the agent was unaware of it, and any doubt he might have had plaintiff's attitude dispelled.

The crated dog was accepted for continuous carriage over the defendant's route on connecting railroads, to Reading, Mass.

Testimony by the plaintiff portrays what his counsel argue was equivalent to the plaintiffs saying that responsibility for the shipment should be coextensive with the measure of responsibility at common law. For this, the plaintiff it is argued, stood prepared to pay. But, counsel continue, on being told in effect by the agent that the express company would not become a quasi insurer and that shipment might be on contract limiting the carrier's liability, but not assuming to exempt the carrier from loss or injury resulting from its own negligence, or not at all, the plaintiff thus denied option or opportunity to ship as he would, coercively shipped as he did.

It is in testimony by the plaintiff that he asked to have his dog insured for $250. Concededly this was the dog's real worth. The agent, on the stand, gives it as his impression that the subject of insurance was mentioned. Again, he testifies that the shipper wanted $250 in case of loss "and, as far as we knew in our office, we did that."

From the carrier's schedules of rates and classifications, which had been filed with the Interstate Commerce Commission, approved by that tribunal, and published and posted, the agent determined the shipment rate with reference to the declared value and informed the shipper the amount. The shipper paid the expressage. He signed and the carrier's agent, in its behalf, signed also that document, which defendant has put in evidence as the contract for transportation. The counterpart was issued to the shipper for the bill of lading.

The signed document provides that the carrier shall not be liable for loss arising from the nature or propensities of the animal, and requires precedently to the recovery of damages that the plaintiff make proof of the carrier's negligence.

Insistence is that whether that which purports to be a contract is a contract must be determined from the facts and circumstances surrounding its execution. Not that counsel for the plaintiff would essay to contradict or explain unambiguous written terms, but they rely on evidence advanced as tending to show that plaintiff never freely and fairly assented to the terms. Argument is that, as the plaintiff was not permitted to ship as he desired, his signature is, in legal view, no signature.

On a different record, the argument might be apropos, but in this case it falls short. No rate for transporting property of the kind tendered by the plaintiff on the basis of virtual insurance against all acts which result from human agency, although occurring without any fault or neglect upon the carrier's part, appears to have been approved by the Interstate Commerce Commission. A contract at variance with an approved tariff would have been invalid. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 32 S. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501.

Interstate shipments are controlled by federal statutes. Adams Express Co. v. Croninger, supra. Under the congressional Act to Regulate Commerce, as amended (49 USCA § 6; Comp. St. § 8569), common carriers of commerce among the states must file with the Interstate Commission schedules of all rates or tariffs. Until the rates are filed and approved, the carrier may not carry or convey from a point in one state to a point in another. When the carrier may transport, the duly filed and approved rate is, for all shipments of like character, the only lawful rate. Chicago & A. R. Co. v. Kirby, supra; Southern R. Co. v. Prescott,

240 U. S. 632, 36 S. Ct. 469, 60 L. Ed. 836; Georgia, F. & A. R. Co. v. Blish Milling Co.,

241 U. S. 190, 36 S. Ct. 541, 60 L. Ed. 948. Deviation therefrom there may not be, because deviation would be violative of equality and uniformity, and deny all shippers similarly situated that like treatment, which the interstate statute requires. Chicago & A. R. Co. v. Kirby, supra; Southern R. Co. v. Prescott, supra; Georgia F. & A. R. Co. v. Blish Milling Co., supra; Boston & M. R. Co. v. Hooker, 233 U. S. 97, 34 S. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; ...