Moore v. Duncan
| Decision Date | 17 November 1916 |
| Docket Number | 2850. |
| Citation | 237 F. 780 |
| Parties | MOORE v. DUNCAN. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Harrington Bigham & Englar, of New York City, and Hoyt, Dustin, Kelley McKeehan & Andrews, of Cleveland, Ohio (Oscar R. Houston, of New York City, of counsel), for plaintiff in error.
Squire Sanders & Dempsey, of Cleveland, Ohio (Robert F. Denison, of Cleveland, Ohio, of counsel), for defendant in error.
Before KNAPPEN and DENISON, Circuit Judges, and SESSIONS, District judge.
The plaintiff in error, as assignee of the consignee of three separate shipments of pig tin from New York and Philadelphia to Steubenville, Ohio, over railroads forming connecting lines between the respective places of shipment and the place of delivery, sued the receiver of the terminal carrier on account of the loss of a portion of each shipment, charging that while the car containing the tin was 'in the custody and control of the defendant and in course of transportation over the Wheeling & Lake Erie Railroad as a common carrier within the state of Ohio, pursuant to the said shipment,' a portion of each shipment was stolen from the car containing it 'by the agents and employes of the defendant, while employed by the defendant in connection with the transportation of the said car of tin over the lines of the Wheeling & Lake Erie Railroad, as above stated; that said theft was committed by the defendant's said agents and employes, either alone or in conspiracy or collusion with other persons to the plaintiff unknown. ' Judgment was demanded for the aggregate of the full values of the stolen lots, with interest. The defendant, in addition to a notice which amounted to a general denial, pleaded as a second defense that with respect to each shipment the defendant railroad formed with its connecting carrier a through line from the place of shipment to Steubenville; that through rates were in effect and joint tariffs therefor duly and legally published and on file as required by law, which tariffs put in effect two rates upon pig tin shipped from the respective places of shipment to Steubenville, one based upon a released valuation of $100 per ton, the other a higher rate when the shipments were not so released; that the shippers knowing the tariff provisions, presented to the initial carrier bills of lading in form approved by the Interstate Commerce Commission, made out and signed by the shippers, with indorsement calling for the released valuation; that the shipment was carried under the lower rate; that the bill of lading contained a provision that 'the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment * * * unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events, lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence'; and that the consignee, knowing the terms of the bill of lading and the provisions of the tariffs, paid the freight at the lower of the two published rates after knowing of the loss in shipment.
A demurrer to the second defense was overruled, and on defendant's confession of judgment for the value of the stolen tin at the lower tariff rate, with interest, judgment was rendered therefor.
The writ of error rests on the sole proposition that the released valuation does not apply to the facts alleged in plaintiff's petition, and that the legal measure of recovery is the full value of the tin stolen.
Counsel for plaintiff in error properly concede it to be the settled rule that:
'Although it is against public policy to permit a common carrier to stipulate for exemption from liability for negligence, it is not against public policy for a carrier to stipulate as to the value of the goods carried, and that such a stipulation, whether made by express agreement between the carrier and the shipper, or embodied in the schedules filed with the Interstate Commerce Commission pursuant to law, will be enforced in the ordinary case of loss through the carriers' negligence. ' [1]
The validity of a contract limiting the carriers' liability to an agreed valuation does not depend upon the relation of that value to the actual value. It rests upon the proposition that, by freely and deliberately electing to contract for carriage at a rate of compensation based upon an agreed value, the shipper is estopped to claim a higher value in case the shipment is lost or damaged. Pierce v. Wells, Fargo & Co., 236 U.S. 278, 283, 35 Sup.Ct. 351, 59 L.Ed. 576, and cases there cited. A published tariff, so long as it is in force, has the effect of a statute and is binding on carrier and shipper. Pennsylvania Ry. Co. v. International Coal Min. Co., supra.
It will be noticed that, by the express contract of the parties as contained in the bill of lading, 'the amount of any loss or damage' for which the carriers are liable shall be ascertained on the basis of the valuation 'whether or not such loss or damage occurs from negligence'-- a stipulation broad enough in its terms to cover theft by an employe. But we assume that, if the carrier had in effect purposefully taken the goods or actually benefited by their confiscation or conversion, it would not be permitted, upon grounds of public policy, to limit its liability under the contract of carriage. Such, however, is not the case alleged. Actual conversion by the carrier to its own use is not charged. The allegation in the petition is not only consistent with but, naturally interpreted, we think charges a theft from a car in transit by employes of the carrier, presumably acting, not in the latter's interest and for its benefit, but against the carrier's interest and to its injury as well as that of the shipper; for by the employe's wrongful act the carrier, instead of being benefited, is directly injured through its liability to the shipper.
The controlling question thus is whether it is competent for the carrier and shipper to extend the limitation of the carrier's liability for loss in the course of transportation to a theft by an employe in his own sole interest and against the interest of his employer.
In Missouri, Kansas & Texas Ry. Co. v. Harriman, supra 227 U.S. at page 672, 33 Sp. Ct....
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