Quaker Worsted Mills Corp. v. Howard Trucking Corp.

• Decision Date: 13 April 1938
• Docket Number: 179-1937
• Citation: 198 A. 691,131 Pa.Super. 1
• Parties: Quaker Worsted Mills Corporation v. Howard Trucking Corporation, Appellant
• Court: Pennsylvania Superior Court

198 A. 691

131 Pa.Super. 1

Quaker Worsted Mills Corporation v. Howard Trucking Corporation, Appellant

No. 179-1937

Superior Court of Pennsylvania

April 13, 1938

Argued October 5, 1937

Appeal from judgment of M. C. Phila. Co., Dec. T., 1936, No. 498, in case of Quaker Worsted Mills Corporation v. Howard Trucking Corporation.

Assumpsit. Before Glass, J., without a jury.

The facts are stated in the opinion of the Superior Court.

Finding and judgment for plaintiff. Defendant appealed.

Error assigned, among others, was refusal of judgment n. o. v.

Judgment affirmed.

Abraham Wernick, with him Hyman Shane, for appellant.

Ned Stein, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Rhodes, J.

Plaintiff, by an action in assumpsit, sought to recover from defendant, a common carrier by motor truck, the value of angora yarn which, it is alleged, defendant failed to deliver. The yarn in question was part of a shipment from plaintiff's place of business in Philadelphia to the consignee in Brooklyn, N. Y. The trial judge, sitting without a jury, found for plaintiff. Defendant's motions for judgment in its favor n. o. v. and for a new trial were dismissed. Judgment was entered for plaintiff on the finding, and defendant has appealed.

Error is assigned to the dismissal of said motions, to the refusal of defendant's requests for findings, and to the affirmance of plaintiff's requests.

Viewed in the light most favorable to plaintiff, as it must be upon such review, there was evidence from which the trial judge could find the following facts: On September 20, 1935, defendant received from plaintiff, at the latter's place of business in Philadelphia, a case containing 276 boxes of angora yarn, being returned for credit, consigned to the Universal Trading House, Brooklyn, N. Y. The case was in good condition, with no broken boards or openings. Defendant gave plaintiff a receipt containing various terms and conditions, among which was the following: "2. In consideration of the rate charged for carrying said property, which is dependent upon the value thereof and is based upon an agreed valuation of not exceeding $ 50 for any shipment of 100 lbs. or less and not exceeding $ .50 per pound actual weight for any shipment in excess of 100 lbs. unless a greater value is declared at time of shipment, the shipper agrees that the company shall not be liable in any event for more than $ 50 for any shipment of 100 lbs. or less, or for more than $ .50 per pound, actual weight for any shipment weighing more than 100 lbs. unless a greater value is stated herein."

When defendant attempted to deliver the case to the consignee it was broken, some of the boards were loose, and the consignee refused to accept it. Thereafter, one Woods, a representative of the latter, called at defendant's terminal, and took the merchandise without the case. The merchandise so removed consisted of 111 boxes of yarn. When Woods insisted upon marking the receipt to show that he had obtained only 111 boxes, an altercation ensued between him and one of defendant's employees, as the result of which he was beaten, and was never able to mark the receipt as he had requested.

There was a conflict in the testimony as to the size and capacity of the packing case in which the yarn was shipped; but two witnesses, who were present when the case was packed, testified positively that it had contained 276 boxes of yarn when delivered to defendant.

Appellant contends that appellee cannot recover because it failed to prove that the former was negligent, and that, in any event, appellant's liability was limited to the value set forth in the paragraph of the shipping receipt above quoted.

We agree with the conclusion of the learned court below that appellee is entitled to recover the actual value of the goods not delivered. Since much of the argument relates to the clause containing the limitation of appellant's liability to appellee, and as the validity of that clause depends upon the law to be applied, that feature of the case will receive first consideration. The rule has long prevailed in the federal courts that a common carrier "may, by a fair, open, just, and reasonable agreement, limit the amount recoverable by a shipper in case of loss or damage to an agreed value, made for the purpose of obtaining the lower of two or more rates of charges proportioned to the amount of the risk": Adams Express Co. v. Croninger, 226 U.S. 491, at page 509, 57 L.Ed. 314, at page 321, 33 S.Ct. 148. See, also, Hart v. Pennsylvania Railroad Co., 112 U.S. 331, 28 L.Ed. 717, 5 S.Ct. 151. In Grogan & Merz v. Adams Express Co., 114 Pa. 523, 7 A. 134, our Supreme Court expressly declined to follow that rule, and adhered to its declared doctrine which denied that right of a common carrier to thus limit its liability for injuries resulting from negligence. Such action does not constitute an unlawful attempt to regulate interstate commerce, in the absence of congressional action providing a different measure of liability when contracts such as that involved in the instant case are made in relation to interstate carriage. Pennsylvania Railroad Co. v. Hughes et al., 191 U.S. 477, 48 L.Ed. 268, 24 S.Ct. 132.

Prior to the Motor Carrier Act, 1935 (Feb. 4, 1887, c. 104, pt. 2, § 201 et seq., as added, Aug. 9, 1935, c. 498, 49 Stat. 543, 49 U.S.C. A. § 301 et seq.), the Interstate Commerce Act, and its amendments, 49 U.S.C. A. § 1 et seq., as related to the limitation of a carrier's liability for injury to goods caused by its negligence, did not affect interstate transportation by motor vehicles. In Pennsylvania Railroad Co. v. Public Utilities Commission of Ohio, 298 U.S. 170, at page 174, 80 L.Ed. 1130, 1132, 1133, 56 S.Ct. 687, the Supreme Court, in an opinion by Mr. Justice Cardozo, said: "The Interstate Commerce Act (49 U.S.C. A. § 1 et seq.) is aimed at common carriers exclusively, § 1 (1), (3), and not even at all these. With exceptions plainly unrelated to this case, § 1 (1), (b), (c), carriers, even though common, are unaffected by the act unless they are carriers wholly by railroad, or if partly by railroad and partly by water, are operating under 'a common control, management, or arrangement for a continuous carriage or shipment.' § 1 (1), (a). Cf. Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Comm'n, 162 U.S. 184, [40 L.Ed. 935, 16 S.Ct. 700, 5 Inters. Com. Rep. 391]; Louisville & N. R. Co. v. Behlmer, 175 U.S. 648, [44 L.Ed. 309, 20 S.Ct. 209]; Standard Oil Co. v. United States (C. C. A.2d) 179 F. 614; Mutual Transit Co. v. United States (C. C. A.2d) 178 F. 664." See, also, Hartzfeld v. Bloom, 127 Pa.Super. 323, 193 A. 386. The Motor Carrier Act, 1935, 49 U.S.C. A. § 301 et seq., extended to common carriers by motor vehicle the provisions of the Interstate Commerce Act governing the limitation of liability by a common carrier in receipts or bills of lading. 49 U.S.C. A. § 319. However, that act did not by its terms become effective until October 1, 1935 (49 U.S.C. A. § 327), which was subsequent to the date upon which the cause of action in the present case arose.

Therefore, we conclude that the application of the Pennsylvania rule, which involves the limitation of liability relied upon by appellant, does not deprive appellant of any right to which it is entitled by virtue of the Constitution and statutes of the United States.

It is the settled policy of this state that a common carrier may not limit its liability for negligence by contract. Grogan & Merz v. Adams Express Co., supra; Ruppel v. Allegheny Valley Railway, 167 Pa. 166, 31 A. 478; Eckert v. Pennsylvania Railroad Co., 211 Pa 267, 60 A. 781. But appellant claims that the action is assumpsit based on a contract of which the limitation is part, and that appellee cannot assert the contract and resist enforcement of a portion thereof inimical to recovery. The answer to this is twofold. In the first place, the liability of a common carrier for goods entrusted to it for transportation does not arise from contract, but is cast upon the carrier by the law. Dodge v. Adams Express Co., 51 Pa.Super. 481. The mutual rights and duties of the parties exist by virtue of their relationship, independent of express contract. See Eckert v. Pennsylvania Railroad Co., supra. The great number and variety of receipts and bills of lading issued by common carriers, disclosed by the cases where they came under consideration, are almost always silent concerning the obligation assumed by the carrier, but are replete with terms by which that obligation is sought to be restricted. It is evident that they recognized that the law has defined the duty of the carrier, and writing the words into the instrument would merely render visible that which is already a part of the contract. Accordingly, it is held that, for negligence by a common carrier in transporting goods entrusted to it, the shipper may, at his election, bring either an action ex contractu or an action ex delicto. Eckert v. Pennsylvania Railroad Co., supra; Dooley v. New York Central & Hudson River Railroad Co., 62 Pa.Super. 237; Howard v. American Express Co., 47 Pa.Super. 416. Secondly, the clause in question, being opposed to the policy of this state, will not have the aid of its courts. In Swing v. Munson, 191 Pa. 582, 43 A. 342, an action to recover on premium notes, given by defendant to a fire insurance company, the defense was that the company had not complied with the statutory requirements precedent to doing business in Pennsylvania. It was argued there, as it is argued analogously in the instant case, that, the defendant having had the benefit of the contract, it was inequitable to permit him to escape his share of...