Latta v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 26 July 1909
• Docket Number: 2,975.
• Citation: 172 F. 850
• Parties: LATTA v. CHICAGO, ST. P., M. & O. RY. CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

172 F. 850

LATTA v. CHICAGO, ST. P., M. & O. RY. CO. ^[1]

No. 2,975.

United States Court of Appeals, Eighth Circuit.

July 26, 1909

H. C Brome (M. R. Hopewell and W. M. Hopewell, on the brief), for plaintiff in error.

Carl C Wright (B. T. White, on the brief), for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

CARLAND District Judge.

Latta brought this suit in a state court in Nebraska against the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover damages from it as a common carrier for the breach of a contract to transport from Tekamah, Neb., to Waterloo Iowa, one mare and colt. The petition alleges that, by the negligence of the defendant, said mare and colt were burned while being transported on the line of defendant's railway in the state of Nebraska, and claims damages to the amount of $3,024.38. The defendant removed the suit into the Circuit Court of the United States for the District of Nebraska, where it was tried by a jury. As a part of the cross-examination of the plaintiff, counsel for defendant offered in evidence the contract under which said property was to be transported, also a paper called a 'shipping order.' The offering of these instruments was objected to by counsel for plaintiff, but the trial court overruled the objection and admitted them in evidence. The plaintiff gave testimony tending to prove the alleged negligence and how the loss and injury occurred. He then offered evidence tending to show that the value of the mare and colt was $2,500. Counsel for defendant objected to this testimony in regard to value on the ground that it was not competent for the plaintiff to prove any damage or loss in excess of that set out in the contract. Counsel for plaintiff then offered to prove by other witnesses the allegations of his petition. Whereupon the trial court ruled that the defendant was liable in any event for the loss of the mare and colt, but that it was only liable for the amount specified in the contract, and, against the objection of counsel for plaintiff, directed the jury to return a verdict in favor of plaintiff in the sum of $220.09. It was shown at the trial that the rate of $24.38 charged by the defendant for the transportation of the animals mentioned was its regular tariff based upon the valuation stated in the contract. It was also conceded at the trial that said tariff rate had been filed with the Interstate Commerce Commission, and published as required by law, and that the rules, regulations, and tariffs of the defendant on file with the Interstate Commerce Commission disclosed that the above named rate applied to the limited liability contract in use by the company for the transportation of live stock.

The errors assigned herein are that the court erred in refusing to permit the plaintiff to show the actual damage he had sustained, and in so charging the jury as to restrict their verdict to the sum above stated. The contract between plaintiff and defendant for the transportation of the mare and colt so far as is material to the question now under investigation was in the following language:

'Read this Contract.

'Chicago, St. Paul, Minneapolis & Omaha Railway Co.

'It is the desire of this company that this contract shall be executed on all shipments of live stock in car load lots or less. In case shipper declines to execute this contract, the valuation of the live stock, as stated by the shipper, shall be stated on the shipping bill, and in such case the rates will be 10 per cent. higher than they would be under this contract if he executed it. If the shipper declines either to state the value of the live stock on the shipping bill or execute this contract, the charges in that case will be 10 per cent. higher than the rates provided in this contract when the owner or shipper declares the value of the stock to be over $800. per head or declines to declare its value. (TABLE OMITTED)

'This agreement entered into on the day above stated, between the Chicago, St. Paul, Minneapolis & Omaha Railway Company and B. R. Latta.

'Witnesseth, That the said railway company has this day received from the said B. R. Latta, one horse to be transported from Tekamah, Nebr., station to Waterloo, Ia., station, consigned to Joe McLaughlin, at D.O. at the rate of trf. per cwt. upon the terms and conditions following, that is to say; The said Railway Company shall not be liable for the loss or death of, or any injuries received by, any of such stock, unless the same is immediately caused by the willful misconduct or the actual negligence of the said Company, or its agents, servants or employes.

'The rates provided in the tariffs of this company are based upon the following value of animals named, to-wit:

'One hundred dollars per head on each horse or pony (gelding, mare or stallion), mule or jack.

'Fifty dollars per head on each ox or bull.

'Thirty dollars per head on each cow.

'Ten dollars per head on each calf or hog.

'Three dollars per head on each sheep or goat.

'And if this shipment is moved at the tariff rate it is agreed that the value of the animals shipped does not exceed, of their kind, per head the above named valuation.

'If the shipper declares a value in excess of the above valuation, and this shipment is moved at a rate based thereon, it is agreed that the value of the animals shipped does not exceed such declared valuation, which is as follows:

Each horse or pony (gelding, mare or stallion) mule or jack, per head ............................................................	$100.00
Each ox or bull ...................................................	$ ....
Each cow, per head ................................................	$ ....
Each calf or hog, per head ........................................	$ ....
Each sheep or goat, per head ......................................	$ ....

'The shipment covered by this contract is accepted and forwarded subject to the agreed valuation, and the rate of freight is based on the condition that the railway company assumes liability only to the extent of such agreed valuation.

'When the declared value exceeds the valuation on which the tariff rate is charged, an addition of 25 per cent will be made to such rate for each 00 per cent or fraction thereof, additional declared value per head up to $800.00 per head. When the owner or shipper declares the value to be greater than $800,00 per head, or declines to declare the value of the stock, charges will be based upon 200 per cent of the rate provided above, based on value of $800.00.'

The shipping order signed by plaintiff was in the following language:

'See Contract on Back of this Shipping Order.

Chicago, St. Paul, Minneapolis & Omaha Railway Co.

'Shipping Order.

Car No. 5721

(To be retained by Agent)

No. . . .

Initials of Car C.G.W.

Tekamah, Station 5-9, 1907

'(The shipper may elect to accept the conditions printed on the back hereof and as contained in the bill of lading of which this shipping order is a part, or may, as provided below, require the carriage of property at 'Carrier's Risk.)'

'Receive, carry and deliver the articles described below in accordance with the tariff and classification in effect at the date of this order and subject to the conditions of the bill of lading of which this shipping order is a part. (For carrier's liability see note below.)

---------------------------------------------------------------------- Consignee, Destination, Marks and Routing Articles Weight Subject to Correction. Joe McLaughlin, 1 horse 1 colt under 1 year Waterloo, Iowa. 2000 O Rel to Cont. val. 750 S. L.& C. Paid to Apply, $24.38 Charges Advanced. B. R. Latta, Shipper. [In red ink across the face:] Grain subject to Elevator Delivery. ----------------------------------------------------------------------

'If the shipper elects not to accept the said tariff rates and conditions, he should so notify the agent of the receiving carrier at the time his property is offered for shipment, and if he does not give such notice it will be understood that he desires his property carried subject to the conditions of the bill of lading of which this order is a part, in order to secure the reduced rates thereon. Property carried not subject to the conditions of the bill of lading will be at the carrier's liability, limited only as provided by common law and by the laws of the United States, and of the several states in so far as they apply. Property thus carried will be charged at the higher rating provided in current tariffs and classifications to apply when not shipped subject to the conditions of the bill of lading of which this is a part, and the cost of marine insurance will be added over any part of the route that may be by water.'

"No 16. Owner's Risk. All property received and shipped O.R. (meaning owner's risk) is shipped subject to the conditions printed on the back of this receipt, and to all conditions, specified in general tariffs and classifications, and at a reduced rate by reason of the acceptance of such conditions. If the shipper does not accept such conditions he must give notice to the agent at the time of the signing of the shipping bill, and by so doing may have goods...