J.M. Pace Mule Co. v. Seaboard Air Line Ry. Co.

• Decision Date: 20 November 1912
• Parties: J. M. PACE MULE CO. v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

76 S.E. 513

160 N.C. 215

J. M. PACE MULE CO. v. SEABOARD AIR LINE RY. CO.

Supreme Court of North Carolina

November 20, 1912

Appeal from Superior Court, Wake County; Cline, Judge.

Action by the J. M. Pace Mule Company against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A statute will not be construed as taking away a common-law right, unless to construe it otherwise would render it inoperative.

This action was originally brought by the plaintiff against the Seaboard Air Line Railway and the Louisville & Nashville Railroad Company to recover $310 for the death of a mule alleged to have been caused by the negligence of the defendants in the course of transportation from East St Louis, Ill., to Raleigh, N.C. The mule in question was one of a car load of 26 shipped by the Maxwell-Crouch Mule Company to the plaintiff company on March 3, 1911. The mules arrived at Raleigh March 8, 1911. The injury to the mule was apparent when he was unloaded, and he was sent to the stable of a veterinary surgeon by the defendant's agent. A few days after being sent to the stable the mule died.

At the trial the court instructed the jury that there was no evidence of negligence on the part of the Louisville & Nashville Railroad Company, and the verdict rendered placed the responsibility for the mule's death entirely on the Seaboard Air Line Railway.

The defendant pleaded the provisions of the act to regulate commerce, as amended, as restricting the plaintiff's right to recover more than $100 for the death of this mule and offered in evidence tariffs and classifications on file with the Interstate Commerce Commission, from which it appeared that the rate charged and the valuation fixed in the contract upon which this shipment moved are in accordance with the published tariff rate. The defendants also pleaded the provisions of the contract of shipment, fixing the value of the mule at $100, as a bar to plaintiff's right to recover more than that amount under the law as declared by the Supreme Court of North Carolina. The contract recited a rate of $170 per car, and contained this provision "Should damage occur for which the said carrier may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed *** for a horse or mule $100 *** which amounts it is agreed are as much as such animals as are herein agreed to be transported are worth." The defendant also offered evidence tending to prove that the rate on horses and mules from National Stockyards, Ill., to Raleigh, N. C., via Louisville & Nashville Railroad Company and Seaboard Air Line is $170 per standard car, plus $1 bed charges and feed charges en route; when regular live stock contract is executed, which limits liability of carrier, not to exceed $100 per animal in case of loss or damage. In case the shipper desires not to accept contract limiting liability, he can increase the valuation of the animals, but for every increase of 100 per cent. or fraction thereof in the value of his animals the freight rate is increased 20 per cent. more on the car.

The jury returned the following verdict:

"(1) Was plaintiff's mule injured by the negligence of the defendant Louisville & Nashville Railroad Company, as alleged in the complaint? Answer: No.

"(2) Was plaintiff's mule injured by the negligence of the defendant Seaboard Air Line Railway, as alleged in the complaint? Answer: Yes.

"(3) Did the plaintiff comply with the contract of shipment as to the giving of notice to the railroad company (Seaboard) as to his claim for damages? Answer: Yes.

"(4) What damages, if any, is plaintiff entitled to recover? Answer: $285."

His honor, being of opinion that the clause in the bill of lading limiting the value to $100 did not prevent the recovery of the damages sustained by negligence, and that to permit such a recovery did not interfere with the act to regulate interstate commerce, rendered judgment in favor or the plaintiff for $285, and costs, and the defendant excepted and appealed.

Murray Allen, of Raleigh, for appellant.

S. Brown Shepherd, of Raleigh, for appellee.

ALLEN J.

The execution of a bill of lading by a railroad company establishes a contractual relationship between it and the shipper, the carrier agreeing, for a consideration, to transport and to deliver, and the shipper agreeing to pay the consideration. This is the contract. 4 Elliott on Railroads, § 1415.

In addition to the obligations contained in the contract, the law imposes upon the company other obligations and duties, and justifies its right to do so because the company is a creation of the law, enjoys a virtual monopoly of the carriage of freight within a certain distance, and exercises the right of eminent domain, which can only be conferred in consideration of public service. Branch v. Railroad, 77 N.C. 349. "He [the common carrier] exercises a public employment, and has duties to the public to perform." York Co. v. Railroad, 70 U.S. (3 Wall.) 112, 18 L.Ed. 170. "Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77. "Railroads are common carriers and owe duties to the public." Joy v. Railroad, 138 U.S. 51, 11 S.Ct. 258, 34 L.Ed. 843. These duties of the common carrier, as such, do not rest upon contract, but are imposed by law (4 Elliott on Railroads, § 1454), and exist independently of contract, having their foundation in the policy of the law (Merritt v. Earle, 29 N.Y. 122, 86 Am. Dec. 292). Among these duties imposed by law, independent of contract, are to carry safely and to deliver within a reasonable time, and a breach thereof is a tort. Peanut Co. v. Railroad, 155 N.C. 150, 164, 71 S.E. 71. In Robinson v. Threadgill, 35 N.C. 41, and in Bond v. Hilton, 44 N.C. 308, 59 Am. Dec. 552, Nash, Chief Justice, says: "Where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an action on the case founded on the tort is proper." In Williamson v. Dickens, 27 N.C. 265, although the plaintiff could have sued in contract, he was allowed to sue in tort, and thereby avoid the defense of a discharge in bankruptcy.

These cases are approved in Solomon v. Bates, 118 N.C. 315, 24 S.E. 478, 54 Am. St. Rep. 725, and the principle was approved by the Supreme Court of the United States in Guardian T. & D. Co. v. Fisher, 202 U.S. 57, 26 S.Ct. 186, 50 L.Ed. 367, where the court says: "Doubtless in the same transaction there may be negligence and breach of contract. If a railroad company contract to carry a passenger, there is an implied obligation that he will be carried with reasonable care for his safety. A failure to exercise such care, resulting in injury to the passenger, gives rise to an action ex contractu for breach of the contract, or as well to an action for the damages on account of the negligence--an action sounding in tort."

These authorities and many others, not only hold that an action in tort may be maintained for breach of duty, resulting in damage, although the duty is imposed because of the relationship created by contract, but they go further and classify the action as one to recover damages for negligence. "In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant." 29 Cyc. 419.

If these views are sound, we come to the consideration of the question of the right of the common carrier to limit its liability by contract. Prior to 1776 the common carrier was an insurer, and liable for losses occasioned by all causes except the act of God and the King's enemies, and without power to limit its responsibility (Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393), but this rule has been modified to the extent that the extraordinary liability as an insurer may be limited (5 Eng. Rul. Cases, 346, note). The courts have not, however, gone further, and permitted the carrier to absolve itself from the consequences of its own negligence. Moulton v. Railway, 31 Minn. 85, 16 N.W. 497, 47 Am. Rep. 781; Railway v. Wynne, 88 Tenn. 320, 14 S.W. 311; Hudson v. Railroad, 92 Iowa, 231, 60 N.W. 608, 54 Am. St. Rep. 550; Railway v. Hall, 124 Ga. 322, 52 S.E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. Rep. 170, 4 Ann. Cas. 128; Express Co. v. Backman, 28 Ohio St. 156; Railway v. Lockwood, 84 U.S. (17 Wall.) 357, 21 L.Ed. 627; Railway v. Solan, 169 U.S. 135, 18 S.Ct. 289, 42 L.Ed. 688; Calderon v. Steamship Co., 170 U.S. 272, 18 S.Ct. 588, 42 L.Ed. 1033. The consensus of opinion on this question is stated in 6 Cyc. 385 and 388, as follows: "While considerations of public policy have been potent in determining the courts to recognize a rule of liability in the case of common carriers much stricter than that recognized as applying in the case of ordinary bailees, the courts have not thought it necessary to deny the parties to a contract of carriage the right to exonerate the carrier from his extraordinary liability, and the general proposition has been almost universally recognized that by special agreement, or by notice to the shipper acquiesced in by him, the common carrier may limit his...