Louisville & N. R. Co. v. Wynn

• Decision Date: 02 January 1890
• Citation: 14 S.W. 311,88 Tenn. 320
• Parties: LOUISVILLE & N. R. CO. v. WYNN.
• Court: Tennessee Supreme Court

14 S.W. 311

88 Tenn. 320

LOUISVILLE & N. R. CO. v. WYNN.

Supreme Court of Tennessee.

January 2, 1890

Error from circuit court, Sumner county; A. H. MUNFORD, Judge.

C. R Head and J. J. Turner, for plaintiff in error.

S. T Wilson and G. W. Boddie, for defendant in error.

CALDWELL J.

Miss Louise Wynn intrusted her thoroughbred mare and colt to the Louisville & Nashville Railroad Company for transportation from Gallatin, Tenn., to Lexington, Ky. The mare died before reaching her destination, and this suit was brought to recover her value from the railroad company. Verdict and judgment were obtained for $800, principal, as the value of the mare, and $167.35, interest thereon. The railroad company has appealed in error. The shipment was made under what is called a "live-stock contract," which contained numerous specific stipulations, one of them being as follows: "And it is further agreed that, should damage occur for which said party of the first part [the railroad company] 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 stallion or jack, $200; for a horse or mule. $100; cattle, $30 each; other animals, $15 each." The trial judge, following the first part of this provision and ignoring the other, instructed the jury, in substance, that, if the plaintiff be entitled to recover at all, the measure of damages would be the value of the mare at the time and place of shipment. It is contended by counsel for the company that it can in no event be liable for more than $100, that being the maximum sum mentioned in the contract as recoverable for a horse; and that, therefore, the recovery is excessive, even if it be shown or conceded that the death of the mare was caused by the negligence of the company. If the limitation as to amount in the stipulation quoted be valid, the contention is correct; if invalid, then the contention cannot be sustained. Therefore, the validity or invalidity of that limitation is the question for our consideration on this branch of the case. In this contract of affreightment, the defendant company was a common carrier. Though questioned in argument at the bar, it is now well settled, at least in this country, that railroads are common carriers of live-stock, with the same duties and responsibilities as existed at common law with respect to the carriage of goods, except that they are not to be held as insurers against losses and injuries resulting from the inherent nature, propensities, or habits of the animals themselves. Hart v. Railroad Co., 112 U.S. 331, 5 S.Ct. 151; Lindsley v. Railroad Co., 36 Minn. 539, 33 N.W. 7; Ayres v. Railroad Co., 71 Wis. 372, 37 N.W. 432; Moulton v. Railway Co., 31 Minn. 85, 16 N.W. 497; Railroad Co. v. Simpson, 30 Kan. 645, 2 P. 821; Railroad Co. v. Abels, 60 Miss. 1017; Railroad Co. v. Henlein, 52 Ala. 606, 56 Ala. 368; Railroad, etc., Co. v. Smitha, 85 Ala. 47, 4 South. Rep. 708; McFadden v. Railway Co., 92 Mo. 343, 4 S.W. 689; Baker v. Railroad Co., 10 Lea, 304; Railroad Co. v. Jackson, 6 Heisk. 271; Railroad Co. v. Hale, 85 Tenn. 69, 1 S.W. 620; Smitha v. Railroad Co., 86 Tenn. 198, 6 S.W. 209; Railroad Co. v. Mason, 11 Lea, 116. In some of these cases, the question as to whether or not railroad companies are to be regarded as common carriers of live-stock is elaborately considered, with the conclusion we have announced; and in others they are recognized and treated as possessing that character without discussion. The number of cases so holding in this and other states of the Union could be greatly multiplied if their citation were deemed necessary. We only add the weight of the pinion of a few eminent text-writers. Says Mr. Hutchinson, after a review of many of the adjudged English cases: "These cases have been considered as establishing in the English law the principle--whatever doubts might have been previously cast upon the question by the opinions of learned judges --that the carriers of live animals incur the responsibilities of common carriers as to such freight; but that at the same time, where an injury has happened to them, it is competent for the carrier to show that it occurred through the proper vice of the animal, and not from any negligence on his part. And in this country, with great unanimity, the duty and liability of the common carrier as to such freight have been defined with exactly the same limitations and exceptions." Hutch. Carr. § 221. "In nearly all the states, the rule is now well established that the liability of carriers of live-stock is the common-law liability of common carriers of other property, subject only to the qualification that the carrier may be excused from liability where the loss is attributable to the intrinsic qualities or nature of the animals, provided he is himself free from negligence, or is exempted by a valid contract protecting him. This rule seems to have been affirmed in the following states: Alabama, California, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Vermont, Virginia, West Virginia, Wisconsin." 3 Amer. & Eng. Enc. Law, pp. 6 and 7. It is to be observed that Tennessee is omitted from this enumeration, but the decisions which we have cited from this court recognize, if they do not declare, the rule as stated. Following the proposition that railroads are common carriers of live-stock, and accountable as such, our next observation is that no rule of law is more firmly and generally established than that which permits common carriers to limit their liability by special contract; provided, always, that such limitation shall not operate to exempt them from the consequences of their own negligence, or that of their servants. Railroad Co. v. Lockwood, 17 Wall. 357-384; Hart v. Railroad Co., 112 U.S. 338,

5 S.Ct. 151; Dillard v. Railroad Co., 2 Lea, 288; Coward v. Railroad Co., 16 Lea, 225; Marr v. Telegraph Co., 85 Tenn. 529, 3 S.W. 496; Transportation Co. v. Bloch, 86 Tenn. 397, 6 S.W. Rep.881; Pepper v. Telegraph Co., 87 Tenn.559, 11 S.W. 881; Railroad Co. v. Henlein, 52 Ala. 606; Railroad Co. v. Little, 71 Ala. 611; Harvey v. Railroad Co., 74 Mo. 538; McFadden v. Railway Co., 92 Mo. 343, 4 S.W. 689; Oppenheimer v. Express Co., 69 Ill. 62; Brehme v. Dinsmore, 25 Md. 334; Rosenfeld v. Railway Co., 103 Ind. 121, 2 N.E. Rep.344; Moulton v. Railway Co., 31 Minn. 85, 16 N.W. 497; Lawson, Cont. Carr.,§§ 29-67 inclusive; Id., § 132; Hutch. Carr., §§ 248, 263; 3 Wood, Ry. Law, 1578; Schouler Bailm. (2d Ed.), § 456.

The author of American and English Encyclopaedia of Law says. "By the clear weight of authority in England, Canada the United States, and almost without exception in the states of the Union, the rule has been adopted that the common carrier can make no contract, the effect of which will be to exempt him from liability for negligence." 2 Amer. & Eng. Enc. Law, 822. Is the limitation in the contract before us within the prohibition of this eminently just and generally accepted principle? Manifestly the stipulation does not contemplate total exemption from liability; it only provides for partial or limited exemption. Upon that distinction the nice and important question arises, can a stipulation of the latter character stand before the law when one of the former kind cannot? Or, to state the same question differently, and so as to apply it more directly to the facts of this case, the rule of law being established, as we have seen it is, that the defendant company could not lawfully have contracted with the plaintiff that it would in no event be liable for any part of the value of the mare, if lost or destroyed, can the limitation of its liability to $100 be upheld in the courts, if it should appear that her death resulted from the negligence of the company, and that she was in fact worth eight times that amount, as the jury found her to be? We unhesitatingly answer, "No." The carrier cannot by contract excuse itself from liability for the whole nor any part of a loss brought about by its negligence. To our minds it is perfectly clear that the two kinds of stipulation--that providing for total, and that providing for partial, exemption from liability for the consequences of the carrier's negligence--stand upon the same ground, and must be tested by the same principles. If one can be enforced, the other can; if either be invalid, both must be held to be so, the same considerations of public policy operating in each case. With great deference for those who may differ with us, we think it entirely illogical and unreasonable to say that the carrier may not absolve itself from liability for the whole value of property lost or destroyed through its negligence, but that it may absolve itself from responsibility for one-half, three-fourths, seven-eights, nine-tenths, or ninety-hundredths of the loss so occasioned. With great unanimity the authorities say it cannot do the former. If allowed to do the latter, it may thereby substantially evade and nullify the law, which says it shall not do the former, and in that way do indirectly what it is forbidden to do directly. We hold that it can do neither. The requirement of the law has ever been, and is now, that the common carrier shall be diligent and careful in the transportation of its freight, and public policy forbids that it shall throw off that obligation by stipulation for exemption in whole or in part from the consequences of its negligent acts. This view is sustained by sound reason, and also by the weight of authority. Coward v. Railroad Co., 16 Lea, 225; Moulton v. Railway Co., 31 Minn. 85, 16 N.W. 497; Railroad Co. v. Simpson, 30 Kan....