St. Louis & S. F. R. Co. v. Mounts.
| Citation | 1914 OK 629,144 P. 1036,44 Okla. 359 |
| Decision Date | 08 December 1914 |
| Docket Number | Case Number: 3010 |
| Parties | ST. LOUIS & S. F. R. CO. v. MOUNTS. * |
| Court | Oklahoma Supreme Court |
¶0 1. COMMERCE--Interstate Shipments--State and Federal Laws. Since Act Cong. June 29, 1906, c. 3591, sec. 7, 34 Stat. 593 (U. S. Comp. St. 1913,. sec. 8592), the federal statutes, supplemented by the common law as declared by the federal courts, have superseded all state laws pertaining to the substantive rights of parties to an interstate shipment of property; but, in respect to remedies and procedure, the state laws are applicable in state courts.
2. CARRIERS--Interstate Shipments--Holder of Bill of Lading--Right of Action--Connecting Carriers. Under Act Cong. June 29, 1906, c. 3591, sec. 7, 34 Stat. 593 (U. S. Comp. St. 1913, sec. 8592), the only new right of action given the legal holder of a bill of lading in interstate commerce shipments is against the initial carrier, where the primary cause of liability is upon the subsequent connecting carrier.
3. ASSIGNMENTS--Carriers--Claim for Lost Shipment--Assignee of Bill of Lading-- Right of Action. A right of action against an intermediate or terminal connecting carrier, in an interstate shipment, for loss of property in transit resulting from its negligence is assignable; and where, as a result of such loss, the property does not exist, and where the bill of lading embracing the same has been surrendered to the carrier by the shipper in order to obtain delivery to him of other property embraced in such bill, the assignee may sue in his own name upon such right of action without showing that he is the actual holder of such bill.
4. CARRIERS--Interstate Shipment--Contract Limitation of Liability--Validity. In an interstate shipment of property, a stipulation limiting the carrier's liability to the agreed value of the property is valid, even when loss is due to the carrier's negligence, if the shipper himself has declared the value, expressly or by implication, the carrier accepting the same in good faith as the real value, and the rate of freight being fixed in accordance therewith.
5. SAME--Undervaluation-- Effect. An undervaluation of property in fixing interstate freight rates based upon value, whereby the shipper obtains a lower tariff rate than the actual value of the property requires, is prohibited by law; and a stipulation in a shipper's contract for the release of a carrier from liability for loss of the property in excess of the amount at which such property is so undervalued, if the carrier has actual knowledge of such undervaluation, is void, and can neither be made the basis of an action nor of a defense.
6. SAME--Estoppel. Where there has been an unlawful declared or agreed undervaluation of property in fixing tariff rates in interstate shipments without the actual knowledge thereof on the part of the carrier, the shipper is estopped to recover more than such declared or agreed value.
7. CARRIERS--Loss of Interstate Shipment--Burden of Proof-- Release of Liability. The burden is upon an interstate carrier, who has negligently lost property in transit, claiming a release to the amount of the shipper's declared or agreed value of such property, to prove all the facts essential to such defense, including a valid stipulation of release.
8. APPEAL AND ERROR--Evidence--Harmless Error--Competency--Value--Presumptions-- Opinion Evidence. A farmer 70 years old, who has bought, sold, and handled horses practically all his life, and who testifies that he knows the market value of his own stallion in question, is prima facie qualified to state the value of the same. (a) It is not reversible error to permit such farmer to state further that he paid $ 1,500 for such stallion. (b) It appearing that such testimony was given at the place where defendant carrier was bound to have delivered such stallion, and that such witness resided within five miles thereof, it will be presumed, in the absence of evidence to the contrary, that such witness referred to such place as the place of such valuation. 1. TRIAL--Verdict--Construction. In an action for $ 1,700 as the value of a stallion, where the only evidence of value was the testimony of the owner that the stallion was worth $ 1,500, a verdict for "the sum of (12.00) twelve hundred" will be construed to be a verdict for $ 1,200.
W. F. Evans, R. A. Kleinschmidt, Fred E. Suits, and E. H. Foster, for plaintiff in error.
Mounts & Davis and Gray & McVay, for defendant in error.
¶1 Plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court. The essential facts, when not stated, are necessarily presupposed by the propositions stated and the questions discussed in this opinion, and will therefore be understood. Under section 3898, St. Okla. 1893, and section 4268, St. Okla. 1890 (sections 4681 and 6740, Rev. Laws 1910), a right of action is assignable unless arising out of a pure tort; and, in the present case, where the right is to recover of a common carrier for the negligent killing of a stallion in transit from a place in another state to Frederick, Okla., the plaintiff, as assignee of John Cassidy, the owner and shipper, is entitled to maintain this action against the defendant because it arises out of the contract of shipment and is not a pure tort, notwithstanding the action, as brought, is not on the contract and sounds in tort. Chicago, R. I. & P. Ry. Co. v. Bankers' Nat. Bank, 32 Okla. 290, 122 P. 499; Kansas, M. & O. Ry. Co. v. Shutt, 24 Okla. 96, 104 P. 51, 138 Am. St. Rep. 870, 20 Ann. Cas. 255. Also see 1 R. C. L. sec. 7, p. 321, and Hobbs v. Smith, 27 Okla. 830, 115 P. 347, 34 L.R.A. (N. S.) 697. Under the Carmack Amendment (Act June 29, 1906, c. 3591, sec. 7, 34 Stat. 593 [U. S. Comp. St. 1913, sec. 8592]), to the Interstate Commerce Law (Act Feb. 4, 1887, c. 104, sec. 20, 24 Stat. 386), the right of action against an initial carrier is extended to cases where the primary cause of liability is upon a subsequent connecting carrier and in favor of the lawful holder of the receipt or bill of lading issued by the carrier; but it is further provided that such initial carrier may recover from such connecting carrier "the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof." Except as to the said extension of the right of action to the cases specified above, which is the only new right given the shipper by the Carmack Amendment, that amendment is merely affirmatory of the pre-existing law in this respect. 36 Cyc. 1073-1077; U. S. v. Barnes, 222 U.S. 513, 32 S. Ct. 117, 56 L. Ed. 291; Hendrix v. U. S., 219 U.S. 79, 31 S. Ct. 193, 55 L. Ed. 102; Great Northern R. Co. v. U. S., 208 U.S. 452, 28 S. Ct. 313, 52 L. Ed. 567. Under the former law, as well as the present law, bills of lading stood as the substitute and representative of the goods described therein, and, although not "negotiable instruments" in the full sense in which that term is applied to bills and notes, the transfer of the bill passed to the transferee the transferror's title to the goods described. 6 Cyc. 424; 4 Elliott on Railroads, 1426, 1428; 1 Hutchinson, Carriers (3d Ed.) 175; The Carlos F. Roses, 177 U.S. 655, 20 S. Ct. 803, 44 L. Ed. 929; The Telegraph v. Gordon, 14 Wall. 258, 20 L. Ed. 807; Conard v. Atlantic Insurance Co., 1 Pet. 386, 7 L. Ed. 189; Pollard v. Vinton, 105 U.S. 7, 26 L. Ed. 998; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U.S. 727, 8 S. Ct. 266, 31 L. Ed. 287. As against an intermediate or terminal carrier, it may be that, by reason of such designation of the lawful holder of the bill of lading as having the right of action against the initial carrier, no one can have any right of action inconsistent with that of the owner of the property as evidenced by the receipt or bill of lading, where there is no judgment evidencing such ownership; but, as against an intermediate or terminal carrier, the right of action is not necessarily evidenced by the receipt or bill of lading, and the owner of the property or his assignee of the cause of action is prima facie entitled to sue. It would seem, if we are correct in assuming that the generally known and uniform practice of such carriers is to require a surrender of the bill of lading as a condition precedent to a delivery of freight to the consignee, that the bills in this case were delivered to the defendant when John Cassidy received and paid the extra freight charges for the other and remaining property embraced in the same shipment at Frederick, which extra charges the defendant claims were in correction of an error in weight provided for in such bills. If defendant has such possession of these bills, it seems certain that John Cassidy's assignment of his cause of action would operate to give the plaintiff the right to sue, such cause of action being the only right that survives the death of the stallion. Indeed, if the right of action is necessarily in the holder of the bill of lading, it would seem that such assignment by a holder would operate as an equitable assignment of the bill itself, and constitute the assignee the equitable holder; and, under the practice in this state, there appears to be no obstacle to an action by such equitable holder in his own name. We do not understand the state laws to be superseded by the federal in respect to remedies and procedure, nor except in respect to the substantive rights of the parties to such shipments. Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060; Bank of Alabama v. Dalton, 9 HOW 522, 13 L. Ed. 242; Dulles v. Jones, 9 HOW 530, 13 L. Ed. 245; McGoon v. Scales, 9 Wall. 23, 19 L. Ed. 545. A farmer, 70 years old, who has bought, sold, and handled horses practically all his life, and who testifies that he knows the market value of his stallion, is prima facie...
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