Kansas City & Memphis Railway Company v. Oakley

• Decision Date: 02 November 1914
• Docket Number: 212
• Citation: 170 S.W. 565,115 Ark. 20
• Parties: KANSAS CITY & MEMPHIS RAILWAY COMPANY v. OAKLEY
• Court: Arkansas Supreme Court

170 S.W. 565

115 Ark. 20

KANSAS CITY & MEMPHIS RAILWAY COMPANY v. OAKLEY

No. 212

Supreme Court of Arkansas

November 2, 1914

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

STATEMENT BY THE COURT.

This was an action by T. H. Oakley against the Kansas City & Memphis Railway Company to recover damages for alleged negligent delay in an interstate shipment of apples. The facts are as follows:

On the 18th day of September, 1913, the defendant Kansas City & Memphis Railway Company, issued a bill of lading to T. H Oakley for a car load of apples at Rogers, Arkansas consigned to himself at Skiatook, Oklahoma, and the shipper paid the freight therefor, which was $ 67. He was charged the regular tariff rate and the only rate that was in force from Rogers, Arkansas, to Skiatook, Oklahoma, over the route the shipment was made.

A clause in the bill of lading provided that the amount of any loss or damage for which the carrier was liable should be the invoice price, including the freight charges. The car contained 520 bushels of apples and the shipper paid therefor, at Rogers, Arkansas, the sum of 67 1/2 cents per bushel, which was the market price at that place at that time. The apples were loaded into a car numbered 29443, but when the shipment arrived at Skiatook it was ascertained that the bill of lading described the car as No. 26045, and the carrier refused to deliver the apples to the consignee, but held them three days until it definitely ascertained that the car of apples was consigned to the plaintiff. According to the testimony of the plaintiff, the mistake in describing the number of the car was the fault of the carrier's agent at Rogers; on the other hand, according to the evidence adduced by the defendant, the mistake occurred through the fault of the shipper. The agent at Rogers testified that he described the car number in the bill of lading as given to him by the shipper who had loaded the apples into the car.

There was no market for the apples at Skiatook and the shipper when the car load of apples was delivered to him, before unloading them, had them shipped to Pawhuska, a short distance away. During the three days the apples were held at Skiatook by the defendant the market price of apples at Pawhuska was $ 1.50 per bushel and it was only a few hours' run from Skiatook to Pawhuska. The shipper paid $ 351.60 for the apples and sold them for $ 159.

According to the testimony introduced by the plaintiff, neither he nor his agent was permitted to inspect the apples when they first arrived at Skiatook, but after they were delivered to him on the third day thereafter he discovered that a great many of the apples had become specked and were beginning to decay. When he unloaded the apples at Pawhuska about seventy-five bushels of them had become mushy and rotten and were wholly unfit for use. He says that a great many more were rotten and were damaged to such an extent that he could not get full value for them. He does not state, however, the number of bushels that were thus damaged.

The jury returned a verdict for the plaintiff in the sum of $ 181.75. The defendant has appealed.

Judgment affirmed.

Dick Rice, for appellant.

1. There is no proof that any injury resulted from the mistake in the number of the car, nor that any damage resulted from "vents" not being kept open.

Section 3 of the bill of lading is not void. 14 I. C. C. Rep. 346; 21 Id. 8. It is not a limitation of the carrier's liability. 159 F. 960; 102 S.W. 11. The measure of damages was the invoice price at place of shipment. 163 S.W. 171; 165 Id. 279.

2. The Coolidge case (83 S.W. 333) is no longer the law. 102 S.W 11; 163 Id. 171; 164 Id. 763. The interstate act controls the liability of carriers in interstate shipments. 101 N.E. 274; 102 Id. 423, and cases supra.

3. It was error, therefore, to admit evidence as to market value in its charge as to measure of damages. 1 Hutch. on Car., § 334; 148 S.W. 1035.

Rice & Dickson, for appellee.

1. Section 3 of the bill of lading was void. Only one rate and one route was offered, hence there was no consideration for the limitation. 73 Ark. 112-117; 74 Id. 358; 87 Id. 343. The cases, 165 S.W. 279, and 163 Id. 171, are not applicable.

2. Proof of the market value in the vicinity was admissible. 83 Ark. 7.

3. There was no errors in refusing instructions 4 and 5, requested. No 3 for appellant covers the same ground as No. 4, and No. 5 is not the law. 100 Ark. 269.

OPINION

HART, J., (after stating the facts).

Counsel for the defendant asked the court to instruct the jury that the plaintiff's damage should be computed upon the basis of the value of the property being the bona fide invoice price to the plaintiff, including freight charges, at the city of Rogers at the time of shipment, and assigns as error the action of the court in refusing to give this instruction. His contention is based upon the clause in the bill of lading, which provided that the invoice price at the city of Rogers, including the freight charges, should be the measure of damages.

It has been repeatedly held by the Supreme Court of the United States in recent decisions that Congress has, by virtue of the Carmack amendment to the interstate commerce act, superseded all State statutes and regulations, and that the validity of any stipulation in a contract for an interstate shipment which undertakes to limit the carrier's liability is a Federal question to be determined by the State and Federal courts under the rule as declared by the Federal courts. That rule is that while a common carrier can not exempt itself from negligence, it may by fair and reasonable exemptions limit the amount recoverable by a shipper to an agreed value made for the purpose of obtaining a lower rate of two or more rates, proportionate to the amount of the risk. Atchison, Topeka & Santa Fe Railway Co. v. Robinson, 233 U.S. 173, 58 L.Ed. 901, 34 S.Ct. 556; Boston & Maine Rd. Co. v. Hooker, 233 U.S. 97, 58 L.Ed. 868, 34 S.Ct. 526; Chicago, R. I. & P. Ry. Co. v. Cramer, 232 U.S. 490, 58 L.Ed. 697, 34 S.Ct. 383; Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148; Kansas City So. Ry. Co. v. Carl, 227 U.S. 639, 57 L.Ed. 683, 33 S.Ct. 391; Missouri, Kansas & Texas Ry. Co.. v. Harriman, 227 U.S. 657, 57 L.Ed. 690, 33 S.Ct. 397.

In the application of this Federal statute we are controlled by the construction given it by the Supreme Court of the United States, and the rule has been followed in Kansas City So. Ry. Co. v. Mixon-McClintock Co., 107 Ark. 48, 154 S.W. 205, and United States Express Co. v. Cohn, 108 Ark. 115, 157 S.W. 144. Thus, it will be seen that the liability imposed by the Federal statute is the liability imposed by the common law upon a common carrier, and it may be limited or qualified by a special contract with the shipper, provided the limitation or qualification be just and reasonable and does not exempt from loss or responsibility due to negligence.

At common law, where goods or commodities are shipped in the ordinary course of commercial traffic to be resold at a profit, the general rule is that in case of the loss or injury to the goods for which the carrier becomes liable, the measure of damages is the value of the goods at the point of destination.

In the case of St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112, 83 S.W. 333, we held that the general rule of damages for unreasonable delay in the transportation of goods is the difference between the market value of the goods at the time and place when and where they should have been delivered and their value when they were delivered, with interest.

In that case the court also held that a contract limiting or restricting the common law rule as to the liability of a carrier for negligence in...