Louisville & N. R. Co. v. Hobbs

• Decision Date: 23 December 1916
• Parties: LOUISVILLE & N. R. CO. v. HOBBS.
• Court: Tennessee Supreme Court

190 S.W. 461

136 Tenn. 512

LOUISVILLE & N. R. CO. v. HOBBS.

Supreme Court of Tennessee.

December 23, 1916

Appeal from Circuit Court, Wilson County; Jno. E. Richardson, Judge.

Action by J. R. Hobbs against the Louisville & Nashville Railroad Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant appeals. Reversed and remanded for new trial.

Lillard Thompson and J. H. Campbell, both of Lebanon, and Jno. Bell Keeble, Ed. T. Seay, and Albert W. Stockwell, Jr., all of Nashville, for appellant.

W. R Chambers, of Nashville, for appellee.

WILLIAMS J.

This is an action instituted by Hobbs against the railroad company to recover damages for alleged injuries to several horses shipped by him from East St. Louis, Ill., to Lebanon, Tenn.

Hobbs recovered a judgment in the circuit court, and that judgment was affirmed by the Court of Civil Appeals. The company petitions this court for a writ of certiorari in order to its relief.

The live stock was transported under a through bill of lading the terms of which are to govern the decision of the case.

The bill of lading provided for limited liability on the part of the carrier-- $100 for each horse--and for a release of the carrier from all liability for loss or damage sustained to said animals from any cause or thing whatever not resulting from the negligence of the agents or servants of said carrier.

The other clauses usually incorporated in such limited liability contracts appear. Among them are the following:

"The carrier will carry live stock at the rate established by it therefor, and where certain risks, duties and liabilities are assumed by the shipper, as hereinafter specified, will carry such live stock at greatly reduced rates.

In the present instance the shipper elects to avail himself of said reduced rate, etc. * * *

The carrier agrees that the freight rate thereon from point of shipment to destination shall not exceed the reduced rate of $70 per car 20,000 pounds."

The determination of liability under this contract of shipment is to be governed by the federal decisions which are to the effect that where alternate rates, fairly based upon valuation, are offered, a railroad may limit its liability by special contract. George N. Pierce Co. v. Wells, F. & Co., 236 U.S. 278, 283, 35 S.Ct. 351, 59 L.Ed. 576, 581; Louisville & N. R. Co. v. Montgomery, 136 Tenn. 171 188 S.W. 1146.

Hobbs testified in the trial below that he had shipped live stock over the company's railroad from East St. Louis to Lebanon for two years; that he estimated that he had shipped from 20 to 25 carloads of stock during that period; that the agents of the company had never notified him that it had more than one rate for the transportation of live stock; and that he had always paid the same rate, never having heard of but one rate.

The insistence for Hobbs is that he is by the federal decisions left the right to show by this proof that the attempted limitation in the contract was ineffectual and that the shipment contract is one of common-law liability on the part of the carrier. The ruling of the Supreme Court of the United States in the recent case of Cincinnati, etc., R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022, is relied upon by counsel of both parties, and the proper construction of the opinion in that case will determine the disposition of this case.

The bill of lading refers to alternate rates established by the carrier, and sets forth the shipper's acceptance of the lower rate granted because of the embodied limitations on the carrier's liability. We construe this to refer to an establishment of rates in accordance with law in schedules filed by the carrier, and to mean that the shipper was notified thereby that there were two rates applicable in the alternative.

May a plaintiff suing on such contract be heard to say that he did not know what was contained in the schedules, if such are found to be filed with the Interstate Commerce Commission and published as the laws of the Congress require?

We construe the Rankin Case not to have the meaning assigned it by the Court of Civil Appeals. We think its ruling did not save to the plaintiff the right to contradict what is proved, or must be presumed, to be in such schedules by showing that he was not in fact offered a choice of rates, and of contracts responding thereto.

...