Thompson v. H. Rouw Co., 12176

• Decision Date: 10 January 1951
• Docket Number: No. 12176,12176
• Parties: THOMPSON et al. v. H. ROUW CO.
• Court: Texas Court of Appeals

Page 662

237 S.W.2d 662

THOMPSON et al. v. H. ROUW CO.

No. 12176.

Court of Civil Appeals of Texas, San Antonio.

Jan. 10, 1951.

Rehearing Denied Feb. 7, 1951.

Eskridge & Groce and Bond Davis, all of San Antonio, Kelley, Mosheim & Ryan, Houston, for appellant.

Hardin & Little, Edinburg, for appellee.

POPE, Justice.

This suit concerns the constitutionality of Article 2226, Vernon's Ann.Civ.Stats., awarding an attorney's fee upon recovery of judgment for freight damages in an interstate shipment, and also whether a commission computed on the basis of the market value of the shipment in good condition should be deducted from the consignor's damages.

The material facts of this case are conceded by both the shipper and carrier. Appellee shipper delivered to appellant carrier at Carrizo Springs, Texas, a carload of carrots consigned to St. Louis, Missouri, under a Uniform Bill of Lading. The carrier in turn delivered the carrots to connecting carriers and after the shipper ordered several diversions the shipment ultimately arrived in Philadelphia, Pennsylvania, in a deteriorated condition, where the carrots were sold for $388.50, which was the best price obtainable. But for two days' delay and defective equipment chargeable to the carrier, the carrots would have arrived in good order and would have been sold for $1,327.50, which was the wholesale market price for the carrots. The shipper had consigned the carrots to Justman-Frankenthal at Philadelphia, who would have charged the shipper a commission of seven per cent, or $92.93 for handling the sale at the Philadelphia market. Justman-Frankenthal actually received a commission of $27.20, that being the commission on the amount for which the carrots were sold in Philadelphia. No delay in shipment was chargeable to the carrier until after the carrots arrived in St. Louis, Missouri, but the point at which defective equipment was used is not shown and may have been in Texas or any other place along the line. The shipment was an interstate shipment.

The trial court gave the shipper judgment, together with interest, for the difference between the market value of the carrots had they arrived in good condition without delay ($1,327.50) and the market value of the carrots which arrived in bad condition after the delay ($388.50) less the commission not earned ($92.93), but did allow the commission actually earned ($27.20). The trial court added to these damages the sum of $250.00 as attorney's fees, which is conceded to be reasonable, if it is a proper allowance. Other adjustments not here under attack were made in the amount of the judgment. Appellant carrier raises the point that the trial court improperly allowed an attorney's fee, and appellee shipper, by counter-point, objects because the full commission of the consignee was not allowed. These are the only points here involved.

We sustain appellant's objection to the allowance of the attorney's fee. Article 2226, Vernon's Ann.Civ.Stats., as amended in 1949, authorized a recovery of a reasonable attorney's fee in addition to the recovery on the claim and costs, in the event of a judgment for freight damages in any amount, unless the claim was paid or satisfied within thirty days. Prior to the 1949 amendment Article 2226 permitted a recovery of an attorney's fee not to exceed twenty dollars on claims not exceeding two hundred dollars. That statute in 1914 was held not in violation of the commerce clause of the United States Constitution. Missouri, Kansas & Texas Railway Company v. Harris, 234 U.S. 411, 34 S.Ct. 790, 58 L.Ed. 1377. The Harris case expressly limited the effect of its holding to claims for damages occurring while the freight was in possession of a carrier within the State of Texas; and unlike the instant case, dealt with a statute which permitted a nominal and limited fee on small claims where the full amount sued for was recovered. Less than one year after the Harris case the Supreme Court of the United States, after distinguishing the Harris case, struck down a South Carolina statute which imposed a fifty dollar penalty for failure to pay an overcharge claim within forty days. Charleston & Western Carolina Ry. Co. v. Varnville Furniture Company, 237 U.S. 597, 35 S.Ct. 715, 59 L.Ed. 1137.

Since Article 1, § 8, of the United States Constitution empowers the Congress to regulate commerce among the several States, state laws must yield when the federal law occupies the field on the same subject of interstate commerce. Chicago, R. I. & G. R. Co. v. DeBord, 109 Tex. 20, 192 S.W. 767. There can be little doubt that Congress had undertaken to legislate concerning the measure of damages to freight in an interstate shipment. This matter has long since been decided. The United States Supreme Court in discussing the scope of the Carmack Amendment enacted in 1906, 49 U.S.C.A. § 20(11, 12), held in the case of Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 152, 57 L.Ed. 314, that local regulation may neither diminish nor increase the carrier's liability, and said:

'It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the state upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the state ceased to exist. (Citing authorities).

'To hold that the liability therein declared may be increased or diminished by local regulation or local views of public policy will either make the provision less than supreme, or indicate that Congress has not shown a purpose to take possession of the subject. The first would be unthinkable, and the latter would be to revert to the uncertainties and diversities of rulings which led to the amendment.'

The period between the Carmack Amendment in 1906 until 1920 was marked with great uncertainty as to the correct measure of carrier liability. The Croninger case in 1913, supra, upheld a provision in the bill of lading limiting a carrier's liability to the declared value. To correct this measure of liability the Congress in 1915 enacted the first Cummins amendment to the Carmack amendment and imposed liability upon the carrier for 'The full actual loss, damage, or injury to such property caused by it * * *' without any limitation. Title 49, § 20(11), U.S.C.A.; 52 I.C.C. 678. Bills of lading and tariffs were then promulgated providing that liability of the carrier should be computed on the basis of the value of the property at the place and time of shipment, together with freight charges if paid. In 1920 the United States Supreme Court declared that measure of damages improper and re-asserted the common law measure of damages as the correct meaning of the Cummins amendment. Chicago, Milwaukee & St. Paul Railway Co. v. McCaull-Dinsmore Co., 253 U.S. 97, 40 S.Ct. 504, 64 L.Ed. 801. The Interstate Commerce Commission carried forward this decision and in 1921 promulgated a bill of lading which provided: 'The carrier or party in possession of any of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided.'

The shipment here in question moved under this same form of bill of lading. The history of these enactments, decisions, and promulgations demonstrates that it is now settled that nothing more nor less may be recovered than allowed under the common law. Attorney's fees are not recoverable under the common law. We have been cited to no case permitting such recovery in cases of carrier liability for damages to interstate shipments, and we have found none. ¹ Attorney's fees are not proper damages to a shipper against the carrier at common law. Shell Petroleum Corporation v. Howth, Tex.Civ.App., 133 S.W.2d 253, affirmed Shell Oil Co. v. Howth, 138 Tex 357, 159 S.W.2d 483; Houston Production Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202; 15 Am.Jur. Damages, § 142; 25 C.J.S., Damages, § 50; 1 Sedgwick, Damages, pp. 463, 464; McCormick, Damages, p. 234.

Moreover, the Interstate Commerce Act, Title 49, § 8, U.S.C.A., expressly authorized the recovery of attorney's fees from a carrier for damages arising from violation of the law. Congress, therefore, did not overlook the matter of attorney's fees. In expressly providing for such recovery in instances of violation of the law by the carrier, on the one hand, and in failing to make such a provision in instances of carrier liability for freight damage, on the other, the Congress effectively legislated that none should be recovered in the latter instance.

Congress has taken the subject of interstate freight damages in hand and, as Justice Holmes expressed it, 'coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.' (237 U.S. 597, 35 S.Ct. 717.) Charleston & Western Carolina Ry. Co., supra. Texas can not extend the interstate carrier's liability for losses, and certainly not to losses on other roads in other states. Congress has nationally undertaken the regulation of commerce between the states, and shippers will not be accorded the privilege of shopping among the states for formus which allow additional recoveries.

We also shall sustain appellee's counter-point and hold that the trial court erred in subtracting the commission based on the full market value from the market value and in allowing only the commission on the sum actually received. The Interstate Commerce Act, Title 49, § 20(11) U.S.C.A., states that a carrier 'shall be liable to the...