Pennsylvania Company v. Kennard Glass & Paint Company

• Decision Date: 19 December 1899
• Docket Number: 9,034
• Citation: 81 N.W. 372,59 Neb. 435
• Parties: PENNSYLVANIA COMPANY v. KENNARD GLASS & PAINT COMPANY ET AL
• Court: Nebraska Supreme Court

81 N.W. 372

59 Neb. 435

PENNSYLVANIA COMPANY v. KENNARD GLASS & PAINT COMPANY ET AL

No. 9,034

Supreme Court of Nebraska

December 19, 1899

ERROR from the district court of Douglas county. Tried below before SLABAUGH, J. Affirmed.

AFFIRMED.

Will A Corson and Winfield S. Strawn, for plaintiff in error:

In arguing the points that the contract of affreightment was a Pennsylvania contract, and should be construed by the laws of that state, and that in Pennsylvania a carrier, by contract may limit its liability, reference was made to the following cases: Missouri P. R. Co. v. Vandeventer, 26 Neb 222; St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463; Atchison, T. & S. F. R. Co. v. Lawler, 40 Neb. 356; Omaha & R. V. R. Co. v. Crow, 47 Neb. 84; Missouri P. R. Co. v. Tietken, 49 Neb. 130; Union P. R. Co. v. Metcalf, 50 Neb. 452; Fremont, E. & M. V. R. Co. v. Waters, 50 Neb. 592; Atchison & N. R. Co. v. Washburn, 5 Neb. 117; Chicago, R. I. & P. R. Co. v. Witty, 32 Neb. 275; Union P. R. Co. v. Marston, 30 Neb. 241; Farnham v. Camden & A. R. Co. 55 Pa. St. 5; Grogan v. Adams Express Co. 114 Pa. St. 523; Patterson v. Clyde, 67 Pa. St. 500; American Express Co. v. Sands, 55 Pa. St. 140; Fairchild v. Philadelphia, W. & B. R. Co. 148 Pa. St. 527; Forepaugh v. Delaware, L. & W. R. Co. 128 Pa. St. 217; Hart v. Pennsylvania R. Co. 112 U.S. 331; Talbot v. Merchant's Despatch Transportation Co. 41 Ia. 247; Arnold v. Potter, 22 Ia. 194; McDaniel v. Chicago & N. W. R. Co. 24 Ia. 412; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522; Cantu v. Bennett, 39 Tex. 303; Beard v. St. Louis, A. & T. H. R. Co. 79 Ia. 531; Dike v. Erie R. Co. 45 N.Y. 113; First Nat. Bank of Toledo v. Shaw, 61 N.Y. 294; Brooke v. New York, L. E. & W. R. Co. 108 Pa. St. 529; Liverpool & Great Western Steam Co. v. Phenix Ins. Co. 129 U.S. 397; Michigan C. R. Co. v. Boyd, 91 Ill. 268; Benton v. German-American Nat. Bank, 45 Neb. 850.

The contract of affreightment is one that is perfectly legal, and which may properly be made where not forbidden by the law of the place where the contract is entered into. See Fairchild v. Philadelphia, W. & B. R. Co. 148 Pa. St. 527; Atchison, T. & S. F. R. Co. v. Mason, 46 Pac. [Kan.], 31; Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210; Pierce v. Southern P. R. Co. 47 Pac. [Cal.], 874; Loeser v. Chicago, M. & S. P. R. Co. 69 N. W. [Wis.], 372; Schaller v. Chicago & N. W. R. Co. 71 N. W. [Wis.], 1042; York County v. Illinois C. R. Co. 3 Wall. [U. S.], 107; Chicago, M. & S. P. R. Co. v. Solan, 18 S.Ct. 89; Texas & P. R. Co. v. Payne, 38 S.W. [Tex.], 366; Hoffman v. Cumberland V. R. Co. 37 A. [Md.], 214; Miller Grain & Elevator Co. v. Union P. R. Co. 40 S.W. [Mo.], 894; St. Louis Ins. Co. v. St. Louis, V. T. H. & I. R. Co. 104 U.S. 146; Richmond & A. R. Co. v. Patterson Tobacco Co. 18 S.Ct. 335; Smith v. Alabama, 124 U.S. 465; Hall v. De Cuir, 95 U.S. 485; Welton v. State, 91 U.S. 275; Brown v. Houston, 114 U.S. 622.

The case of Chicago, B. & Q. R. Co. v. Gardiner, 51 Neb. 70, if sound in principle, differs materially from the case at bar, and is in no manner decisive thereof.

Repudiation of the Pennsylvania contract is a violation of section 1, article 4, of the constitution of the United States, and of section 1 of the 14th amendment to said constitution. See Allgeyer v. Louisiana, 165 U.S. 578.

Kennedy & Learned and Montgomery & Hall, contra.

OPINION

The opinion contains a statement of the case.

NORVAL, J.

In 1893 the Kennard Glass & Paint Company of the city of Omaha purchased of the Pittsburg Plate Glass Company a quantity of plate glass of the value of about $ 3,000. The glass was properly packed in boxes by the vendor, loaded upon a car at Ford City, Pennsylvania, and delivered to the Allegheny Valley Railway Company at said point for transportation to the vendee in the city of Omaha. The glass was carried by said railroad company to Pittsburg, where the same was delivered to the Pennsylvania Company, and it delivered the freight in the city of Chicago to the Chicago Milwaukee & St. Paul Railway Company, and the latter corporation transported the freight to the city of Omaha, where the glass was delivered to the consignee in a badly broken and damaged condition. This action was instituted by the Kennard Glass & Paint Company against the Pennsylvania Company and the Chicago, Milwaukee & St. Paul Railway Company to recover damages sustained by reason of the alleged negligence of the defendants in the transportation of said glass, and their failure to safely carry said freight to its place of destination. In the amended petition it was alleged, in substance and effect, that the defendants were common carriers, and for a certain reward received the glass in question at Ford City to be safely carried to Omaha; that the glass was not safely transported to the place of destination, but was broken and damaged in transit to the amount of $ 433.12. It was also averred that the damage was occasioned by reason of a collision between the car on which the glass was being transported and a car loaded with telegraph poles or timbers. Separate answers were filed by the defendants. That of the Pennsylvania Company admitted only the associate capacity of plaintiff, and the incorporation of the defendant, all other averments of the petition being denied. The Pennsylvania Company, for further answer, alleged that on January 3, 1893, the Pittsburg Plate Glass Company entered into a written agreement with the Allegheny Valley Railway Company, the initial carrier, of which the following is a copy:

"ALLEGHENY VALLEY RAILWAY COMPANY.

"UNIFORM ANNUAL RELEASE.

"FORD CITY STATION, January, 1893.

"Whereas, The Allegheny Valley Railway Company has two different rates of charges for tolls and transportation upon certain articles, viz.: The higher rate, upon the payment of which it assumes the ordinary liability of a common carrier upon its railway for property transported by it; and another lower rate, at which it transports for all those who release it from all liability, so far as may lawfully be done, for any loss or damage, to property entrusted to it for transportation.

"And Whereas, The Pittsburg Plate Glass Co. the undersigned, has determined to ship all property which they furnish for transportation during the year ending upon the thirty-first day of December, 1893, at the reduced rates above referred to, and in consideration thereof to release so far as it lawfully may, the said company and any and every other railway or transportation company to which the said property may be delivered for transportation to or toward its place of destination, from all liability for any loss thereof or damage thereto, considering that the difference in their favor in the cost is equivalent to the risk of transportation.

"Therefore, In consideration of the premises, the said Pgh. P. G. Co. does hereby release and discharge, so far as they lawfully may, the said railway company and all other railway transportation to or toward its place of destination from all claims, demands or liabilities for any loss thereof or damages thereto howsoever occurring by fire or otherwise, or whether by negligence of said railway or transportation companies, or of their or either of their officers, agents, or employees or otherwise, while the same is in their care, custody, or possession.

"And the said Pgh. P. G. Co. hereby authorize the said railway or transportation company and any such other railway or transportation company as their agent, to deliver the said property to any other railway or transportation company over whose route it may be carried to or toward its place of destination, and they agree that no such railway or transportation company shall be considered as carrier of said property beyond its own road or line or in any event be held liable for loss of or damage to said property while in the possession of any other railway or transportation company to which the said property may be delivered as aforesaid.

"This contract is supplemental to the contract contained in any bill of lading issued in respect to any shipment made by the above named shipper.

"In witness whereof, the said Pgh. P. G. Co. has executed this release in Ford City, Pa. this third day of January, A. D. 1893.

"PITTSBURG PLATE GLASS COMPANY,

"R. W. MCCUTCHEON, Shipper.

"Railway Agent. D. S. ROBINSON,

"General Manager Ford City Works."

In the answer it was also pleaded that in pursuance of said contract, and in consideration of a lower rate of freight the Allegheny Valley Railway Company was released by the consignor from all loss or damage to freight shipped during the year 1893, not arising from negligence of said Allegheny Valley Railway Company, its servants and employes; and that the glass in question was carried under said contract, which was valid under the laws of the state of Pennsylvania. The answer of the Chicago, Milwaukee & St. Paul Railway Company admitted its own incorporation and the associate character of the plaintiff; that the glass was delivered to the Pennsylvania Company for safe conveyance from Ford City to Omaha; admitted that the answering defendant received the glass at Chicago from its co-defendant, and that it carried the same to Omaha. Every other allegation of the petition was denied by the answer, and it was specifically averred therein that the defendant handled and transported the glass in a careful and prudent manner, and that it was not damaged or injured while in its possession. Said defendant, in its answer, also pleaded the "Uniform Annual Release," copied above, and alleged that the glass was received and transported under, and in pursuance of, the terms thereof. Plaintiff replied to these answers by a general denial. A verdict was...