Homer v. Oregon Short Line Railroad Co.

• Decision Date: 05 December 1912
• Docket Number: 2397
• Court: Utah Supreme Court
• Parties: HOMER v. OREGON SHORT LINE RAILROAD COMPANY

128 P. 522

42 Utah 15

HOMER v. OREGON SHORT LINE RAILROAD COMPANY

No. 2397

Supreme Court of Utah

December 5, 1912

Writ of Error Granted to Supreme Court of the United States December 18, 1912.

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Charlotte A. Homer against the Oregon Short Line Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

P. L Williams, Geo. H. Smith and Jno. V. Lyle for appellant.

APPELLANT'S POINTS.

A common carrier, in the absence of statutory regulation to the contrary, may by an express contract which is just and reasonable and fairly entered into with the shipper, limit its common law liability for the loss of or damage to property consigned to it for transportation. (Benson v O. S. L. R. R. Co., 35 Utah 24, Pac. ; Larson v. O S. L. R. R. Co., 38 Utah 130, Pac. ; Greenwald v. Weir, 115 N.Y.S. 311, aff'd 199 N.Y. 170; Gardner v. N.Y. C. & H. R. R. Co., 123 N.Y.S. 865; Tewes v. North German Lloyd Steamship Co., 186 N.Y. 151; 13 I. C. C. Rep. 550; Railroad Co. v. Fraloff, 100 U.S. 24; The Kensington, 183 U.S. 263; Hart v. Pa. R. Co., 112 U.S. 331; Southern Ry. v. Jones, 31 So. 501; Railway Co. v. Weakley, 50 Ark. 397; Donolon v. S. P. Co., 91 P. 603; Michalitschke v. Wells Fargo Co., 118 Cal. 683; Pierce v. Railroad Co., 120 Cal. 156; Coupland v. Railroad Co., 61 Conn. 31, 23 A. 870; Central R. R. Co. v. Hall [Ga.], 52 S.E. 679; Railroad Co. v. Johnson King & Co., 121 Ga. 231, 48 S.E. 807; Oppenheimer v. Express Co., 69 Ill. 62; Adams Express Co. v. Carnahan [Ind.], 63 N.E. 245, 64 N.E. 647, 94 Am. St. Rep. 279; Russell v. Pittsburg, etc. R. R. Co., 157 Ind. 311, 61 N.E. 678; Railroad Co. v. McKinney, 34 Ind.App. 402, 73 N.E. 148; Express Co. v. Joyce, 72 N.E. 865; Squire v. N.Y. C. R. R., 98 Mass. 239; Graves v. Lake Shore Ry. Co., 137 Mass. 33; Graves v. Express Co., 176 Mass. 280; John Hood v. American Exp. Co., 77 N.E. 638; Brehme v. Dinsmore, 25 Md. 329; Alair v. Railroad Co., 43 Minn. 160, 54 N.W. 1072, 39 Am. St. Rep. 588; O'Malley v. Ry. Co., 86 Minn. 580, 90 N.W. 974; Harvey v. Terre Haute R. Co., 74 Mo. 538; Vaughn v. Railway Co., 78 Mo.App. 639; Zimmer v. R. Co., 137 N.Y. 460; Toy v. R. Co., 56 N.Y.S. 182; Gardner v. Ry. Co., 127 N.C. 293, 37 S.E. 328; Railroad Co. v. Hubbard, 72 Ohio 302, 74 N.E. 214; Normile v. Railroad & Nav. Co., 41 Ore. 177, 69 P. 928; Ballou v. Earle, 17 R. I. 441, 22 A. 1113; Johnstone v. Railroad Co., 39 S.E. 55, 17 S.E. 512; Louisville, etc., R. Co. v. Lowell, 90 Tenn. 17, 15 S.W. 837; Starnes v. Railroad Co., 91 Tenn. 516, 19 S.W. 675; Hill v. Railway Co., 33 Wash. 697, 74 P. 1054; Ullman v. Ry. Co., 112 Wis. 150, 88 N.W. 41; Gerry et al. v. American Express Co., 62 A. 498.)

All facilities and privileges to be accorded that are of value in the transportation service must be incorporated in the schedules, which are filed and published in accordance with the Interstate Commerce Act. (Pa. Millers' State Assn. v. P. & R. Ry. Co., 8 I. C. C. Rep. 531; Carr v. N. P. Ry., 9 I. C. C. Rep. 1; Central Yellow Pine Assn. v. The Vicksburg, Shreveport & Pac. Ry. Co. et al., 10 I. C. C. Rep. 193; Blackman v. So. Ry. Co., and Blackman v. The Columbia, Newberry & Laurens R. Co., 10 I. C. C. Rep. 352.)

Where the published schedules have been departed from, it will be observed that regardless of hardships or inconvenience that may attend any particular instance, the provisions of the law are strictly enforced both against shipper and carrier, and that the tariff provisions, both as to rates and conditions are binding upon all alike, and cannot be departed from without a violation of the act. (C. B. & Q. Ry. Co. v. Feintuch, 191 F. 482; L. & N. Ry. v. Dickerson, 191 F. 705; B. & O. R. Co. v. Hamburger, 155 F. 849.)

Until the Commission--which is empowered with the authority for establishing, maintaining or altering rate schedules and for redressing injuries, has acted upon the tariff, no court has authority to declare any term, condition or provision of the lawfully established tariffs unreasonable, in violation of the rate law. (Robinson v. B. & O. Ry., 222 U.S. 560; T. & P. Ry. v. Abilene Cotton Seed Oil Co., 204 U.S. 426; Atlantic Coast Line v. Macon Groc. Co., 166 F. 206; Columbia Iron & Steel Co. v. K. & M. Ry., 171 F. 713; Houston C. & C. Co. v. N. & W. Ry., 171 F. 723.)

The legal effect of the requirements of the act are that the carrier is required in advance to give notice to the public that it will undertake to transport passengers or freight for a given charge and upon certain specified terms and conditions. All this constitutes an offer on the part of the carrier to the public who may seek to deal with it, that it will perform certain services under certain conditions and for certain prices. By the provisions of the law, when it has done this, it is forbidden to make any other offer, or to furnish its services upon any other terms or conditions. When, therefore a passenger or shipper, knowing in advance what the offer of the carrier is, comes along and purchases transportation either for his person or his property, he thereby makes a contract and there is thereby a meeting of the minds of the two parties upon the published offer and conditions of the carrier. The offer, in other words, is accepted and a contract thereby created according to the terms of the offer. (Armour Packing Co. v. U.S., 209 U.S. 56; Kansas City So. R. v. Albers Com. Co., 223 U.S. 573; Chicago & Alton R. Co. v. Kirby, decided by the U.S. Supreme Court May 27, 1912, not yet officially published [Advance sheets July 1, 1912, p. 648.]; Nat'l Assn. Letter Carriers v. A. T. & S. F. R. Co., 20 I. C. C. Rep. 6; Dells Paper & Pulp Co. v. C. & N. W. R. Co., 20 I. C. C. Rep. 419.)

When the tariffs have been issued as required, knowledge of their contents is given to the world, and every patron of the railroad company is charged with knowledge of the terms and conditions of the tariff governing the transportation that is purchased and he is bound by the provisions contained therein, whether he actually knows them or not. (Chicago & Alton R. Co. v. Kirby, supra; Gulf, Colo., S. F. Ry. v. Hefley, 158 U.S. 98; T. & P. Ry. Co. v. Mugg, 202 U.S. 242; Armour Packing Co. v. U.S. 209 U.S. 56; K. C. So. Ry. v. Albers Commission Co., 223 U.S. 573.)

Weber & Olson for respondent.

RESPONDENT'S POINTS.

The carrier cannot limit its liability as against its own negligence unless there has been a contract in which the value of the goods shipped has been fairly agreed upon; or as stated by eminent authority: "The stipulation is void as against loss due to the carrier's negligence or other misconduct if the specified amount does not purport to be an agreed valuation, but has been fixed arbitrarily by the carrier without reference to the real value. The stipulation is void as against loss due to the carrier's negligence or other misconduct if the specified amount, while purporting to be an agreed valuation, is in fact purely fictitious and represents an attempt to limit the carrier's liability to an arbitrary amount." (13 I. C. C. Rep. 550, and cases cited; Eells v. St. Louis, etc., Ry. Co., 52 F. 903, 907; Railway v. Wynn, 88 Tenn. 320; Alabama, etc., Ry. Co. v. Little, 71 Ala. 611.)

In the limitation of liability the carrier cannot, in any event, stipulate for more than an exemption from the extraordinary liability the common law imposes; the liability extending beyond that of ordinary paid agents, servants, or bailees, denominated the liability of an insurer. Public policy, and every consideration of right and justice, forbid that he should be allowed to stipulate for exemption from liability for losses or injuries occurring through the want of his own skill or diligence, or that of the servants or agents he may employ, or through his own or their willful default or tort. . . . The carrier cannot stipulate for an absolute, unqualified exemption from all liability, nor can he stipulate that he will answer, in any and all events, only for a sum less than the value of the goods, because in consideration of reduced rates of freight the shipper may assent to it. (Alabama Great Southern Railway Company v. Little, 71 Ala. 611; Scruggs v. Baltimore, etc., R. R. Co., 5 McGrary, 590; Ormsby v. U. P. R. R. Co., 4 F. 706; Judson v. Western R. R. Corporation, 6 Allen 88; Adams Express Co. v. Stettaners, 61 Ill. 184; Ga., Pacific Ry. Co. v. Hughart, 90 Ala. 36; Ga. R. R. Co. v. Keener, 93 Ga. 808; Ullman v. C. & N. W. Ry. Co., 112 Wis. 150; Railway Co. v. Sowell, 90 Tenn. 17; Rosenfield v. Peoria, Decatur & Evansville Ry. Co., 103 Ind. 121, 53 Am. Rep. 500; Western Railway Co. v. Harwell, 91 Ala. 340; 4 Elliott on Railroads, 2336; note 14 L. R. A., pp. 434, 435; 6 Cyc., title "Carriers," p. 400, b.; Hutchinson on "Carriers" [3 Ed.], secs. 425-427.)

Of course where the pretended agreed valuation is not such in fact, but is simply a cloak for a limitation of liability to a fixed sum, which is less than the real value, the contract will not be valid as against a loss due to negligence. (6 Cyc. 401; Ga. R. Co. v. Keener, 93 Ga. 808, 44 Am. St. Rep. 197; 1 Hutchinson on Carriers, sec. 427; 4 Elliott on Railroads, secs. 1497, 1505, 1510; French v. Merchants & Miners Transportation Co., 19 L. R. A. [N. S.] 1006 and notes; Union P. Co. v. Stupeck [Colo.], 114 P. 646; Colorado N. S. Ry. Co. v. Manatt [Colo.], 121 P. 1012. See also dissenting opinion in Tewes v. No. German Lloyd Steamship Co., 8 L. R. A. [N. S.] 199 and notes; McElvain v. St. L. & S. F. R. R. [Mo.], 131 S.W. 736.)

For misdelivery of the baggage of a passenger the carrier will be liable without regard to negligence on his part as for conversion. (6 Cyc. 671-672; Waldman v. Chicago R. Co., 1 Dak. 351, 46 N.W. 456.)

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