Missouri, Kansas Texas Railway Company v. Harriman Brothers

Decision Date10 March 1913
Docket NumberNo. 121,121
Citation227 U.S. 657,33 S.Ct. 397,57 L.Ed. 690
CourtU.S. Supreme Court

Messrs. Joseph M. Bryson, Cecil H. smith, and Alex. S. Coke for plaintiff in error.

[Argument of Counsel from pages 658-662 intentionally omitted] Messrs. William M. Williams and J. A. L. Wolfe for defendant in error.

[Argument of Counsel from pages 662-664 intentionally omitted] Mr. Justice Lurton delivered the opinion of the court:

This was an action in a state court of Texas by a shipper of cattle, under a special live-stock transportation contract for a shipment from a point in Missouri to a point in Oklahoma, to recover the value of cattle killed by a negligent derailment occurring in the former state. The shipment consisted of four bulls and thirteen cows, claimed to have been very valuable 'show cattle.' They were all killed, and plaintiffs recovered their full value, $10,640, and this judgment was affirmed by the court below.

As the transaction was an interstate shipment, the case comes here upon questions which involved the validity of certain provisions in the contract of shipment when tested by the 20th section of the act to regulate commerce [24 Stat. at L. 386, chap. 104], as amended by the act of June 29, 1906 [34 Stat. at L. 593, chap. 3591, § 7 U. S. Comp. Stat. Supp. 1911, p. 1304].

Aside from the question of negligence, which we assume to be closed by the verdict and judgment in the state court, the defenses pressed here are, first, that the limitation of value in case of loss or damage to $30 for each bull and $20 for each cow was a valid declaration of the valuation upon which the rate was based; and, second, that the action was not brought within ninety days after damages sustained, both being stipulations found in the shipping contract.

Those provisions in the contract which directly relate to the questions stated are as follows:

The title at the head of the contract is,—



'This company has two rates on live stock.'

Then follows a paragraph in these words:

'Ordinary live stock transported under this special contract is accepted and hauled at rate named below at owner's risk, as per conditions herein set forth, with the distinct understanding that said rate is a special rate, which is hereby agreed to, accepted, and understood to be at less than published tariff rate applying thereon when transported at carrier's risk.

'All kinds of live stock, carrier's risk, will be taken under the provisions and at rates provided for by existing tariffs and classification.'

Then follows the contract described as 'Special Live Stock Contract No. 4. Executed at Pilot Grove Station, 1-30-1907.'

Passing over a number of provisions concerning the agreement upon the part of the carrier, and a number of things which the shipper assumes to do, we come to § 8, which is in these words:

'8. The carrier does not ship live stock or emigrant outfit under this contract, or at the rate hereon given, upon which its liability in case of any loss or injury shall exceed the following prices per head:

                     Each horse (gelding, mare, stallion
                      mule, or jack).............................. $100
                     Each pony or range horse....................... 30
                     Each ox, steer, or bull........................ 30
                     Each cow....................................... 20
                     Each calf or hog................................ 7
                     Each sheep or goat.............................. 2

'Emigrant outfit (not live stock) consisting of emigrant movables, household goods, second-hand farm machinery, etc., when loaded with live stock, as per classification at valuation not to exceed $5 per 100 pounds in case of loss or damage, and said shipper represents and agrees that his said live stock or emigrant outfit do not exceed in value those prices, and in case of any loss or damage thereto, by carrier's negligent transportation or handling of said cars as aforesaid, it is mutually agreed, in consideration of the rate named, and which is less than the rate applying on shipments at carrier's risk, the shipper shall be entitled to recover only actual damages, but in no instance more than the stipulated valuation shown above.'

The provision of the published tariff sheet referred to in the contract is set out in the margin, preceded by the offer of counsel to file it in evidence. By a clause in the 9th

Mr. Head: We offer the following portions of I.C.C. tariff No. A- 1636, M.K. & T. Local Distance Tariff No. 2548, applying on classes and commodities:

Missouri, Kansas, & Texas Railway Co.

The 'Katy' Route.

Local Distance Tariff No. 2548.

(Cancels No. 737.)

Applying on classes and commodities between stations on the Missouri, Kansas, & Texas Ry. as follows:

Between stations in

Indian territory

Missouri or Kansas

Missouri or Kansas

And stations in

Oklahoma territory

Indiana territory

Oklahoma territory And locally between stations in the Indiana or Oklahoma territories.

Rates in Cents Per 100 lbs. Cattle. (See Rule 3.)

Distance. Commodities. 380 miles and over 370. . . .

Carloads. 26 1/2

Rule 3.

Live stock—Continued.

Limitation of liability.—Rates provided on live stock will apply only on shipments made at owner's risk, with limitation of liability on the part of the railroad company as common carrier under the terms and conditions of the current live stock contract provided by this company, the contract to be first duly executed in manner and form provided therein.

120 per cent of the rates named in this tariff will be charged on shipments made without limitations of carrier's liability at common law, and under this status, shippers will have the choice of executing and accepting contracts for shipments of live stock with or without limitation of liability, the rates to be made as provided for herein section of the contract under which the cattle were shipped, it is stipulated that 'no suit shall be brought against any carrier, and only against the carrier on whose lines the injuries occur, after the lapse of ninety days from the happening thereof, any statute or limitation to the contrary notwithstanding.'

In respect of the two stipulations just referred to, the trial judge charged the jury as follows:

'The contract for shipment in this case contains, among other things, a stipulation that suit for any damages growing out of this shipment must be commenced within ninety days. You are instructed that such stipulation is void and not binding upon the plaintiffs herein.

'Said contract also contains a stipulation to the effect that if the cattle in the shipment are lost or killed, that their owners can only recover a certain fixed amount, which amount is named in said contract. You are instructed that such stipulation is void and not binding upon plaintiffs in this case, and if you should find for plaintiffs, you will fix the amount of their damages under instructions hereinafter given you.'

This charge was approved upon appeal and the judgment affirmed. The ground upon which the charge in respect to the limitation of recovery in case of loss was based was, first, that every such contract, where the loss was due to negligence, was null and void under the law and public policy of the state; and, second, that it was a contract of exemption forbidden by the Hepburn act of June 29, 1906, being the Carmack amendment of the 20th section of the general act to regulate commerce of February 4, 1887.

That the shipper had the choice of two rates, one 20 per cent higher than the other, upon this shipment, is shown by the provisions of the shipping contract and the tariff sheets referred to therein. That the difference between the two rates was not unreasonable, the one when the cattle were not valued and the other when their value was declared, is to be assumed from the acceptance of the rates as filed with the Commission. That the 'portion' of the rate sheets in evidence does not include the 'Current Live Stock Contract' referred to in the part filed is of no vital significance. The objection was not made below. The case was proceeded with in the state court upon the hypothesis that the 'Current Live Stock Contract,' referred to in the 'portion' of the rate sheets actually in evidence, was the live stock contract executed by the parties, and had been duly filed as part of the rate sheets. It is too late to make an objection here which, if made below, might have been remedied by filing all instead of a 'portion' of the filed tariff. Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075. In any event, the rate sheets do provide for a choice between two rates, one with and one without a declared valuation. In one case the carrier is liable for whatever loss or damage the shipper sustains, and in the other its liability is limited to the valuation upon which the rate was based. The ground upon which the shipper is limited to the valuation declared is that of estoppel, and presupposes the valuation to be one made for the purpose of applying the lower of two rates based upon the value of the cattle. This whole matter has been so fully considered in Adams Exp. Co. v. Croninger, 226 U. S. 491, ante, 148, 33 Sup. Ct. Rep. 148, and Kansas City Southern R. Co. v. Carl, just decided [227 U. S. 639, 57 L. ed. ——, 33 Sup. Ct. Rep. 391], that we only need to refer to the opinions in those cases, without further elaboration.

That the trial court and the court of civil appeals erred in holding this stipulation null and void because forbidden by either the law or policy of the state of Texas, or by the 20th section of the act of June 29, 1906, is no longer an open question since the decisions of this court in the cases just referred to.

Nor is there anything upon the face of this contract, when read in connection...

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