Vandenbergh v. Allied Van Lines, Inc.

• Decision Date: 26 April 1960
• Docket Number: No. 9963,9963
• Citation: 351 P.2d 537,137 Mont. 327
• Parties: J. F. VANDENBERGH and Jean Vandenbergh, Plaintiffs and Respondents, v. ALLIED VAN LINES, INC., a Corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 537

351 P.2d 537

137 Mont. 327

J. F. VANDENBERGH and Jean Vandenbergh, Plaintiffs and Respondents, v. ALLIED VAN LINES, INC., a Corporation, Defendant and Appellant.

No. 9963.

Supreme Court of Montana.

April 26, 1960.

Rehearing Denied May 11, 1960.

Skedd, Harris & Massman, Helena, L. V. Harris, Helena, argued orally, for appellant.

Ralph J. Anderson and Stanley P. Sorenson, Helena, Ralph J. Anderson, argued orally, for respondent.

CASTLES, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of plaintiffs. The complaint states two causes of action based upon two separate shipments by the defendant. The first cause of action is to recover the value of certain personal property which was lost in transit between Forest Hills, New York and Helena, Montana. The second cause of action is to recover damages for the impairment of a piano which was being transported from Oakland, California, to Helena. The jury found for plaintiffs on both causes of acton and assessed damages at $3,000 on the first cause of action and $1,450 on the second cause of action.

Pursuant to preliminary phone calls, Muller Bros. Inc., which is admitted by the answer to be an agent of Allied Van Lines in Forest Hills, New York, wrote Mrs. Vandenbergh on October 7, 1955, as follows:

'We are pleased to submit the following estimate on the removal of your household goods:

To ship approx. 2500 1bs 2331 miles at $16.25 cwt $442.50

Federal Trans. Tax 3% 12.68

Comprehensive Transit Protection is at the rate of $5.00 per declared $1,000.00 voluation.' Emphasis supplied.

On November 1, 1955, Mrs. Vandenbergh answered the above letter stating in part, 'Please insure my things with your comprehensive transit protection for $5,000.00.'

The goods which had formerly been in storage at Muller Bros. Inc. warehouse were shipped from Forest Hills and when they were unloaded in Helena one trunk and one carton were missing. The items contained in the trunk and carton were largely items of unusual value such as streling silver, original oil paintings and a valuable stamp collection. Mrs. Vandenbergh testified that Muller Bros. Inc. had instructed her one how to pack these items, and assured her that they would be safely kept while in storage.

At all times mentioned herein, defendant's Tariff No. 48c was in force. Rule 12 of this tariff provides as follows: 'The carrier will not assume any liability whatsoever for: Documents, currency, money, jewelry, watches, precious stones, or articles of extraordinary value including accounts, bills, deeds, evidence of debt, securities, notes, postage stamps, stamp collections, revenue stamps, letters or packets of letters, articles of peculiarly inherent value, precious metals or articles manufactured therefrom, which are not specifically listed on the bill of lading.'

The bill of lading provided that 'The carrier shall be liable for the actual loss or damage of or to any article (except documents, specie or article of extraordinary value which are not specifically listed on the bill of lading) while being carried or held in storage-in-transit, arising or resulting from any external cause other than an act, omission or order of the shipper, owner of the goods, or a civil or military authority, provided that the shipper has declared in writing upon the bill of lading the full actual value of the entire shipment; otherwise, the liability of the carrier for loss or damage to any such article shall be released and limited. * * *

'(b) To a proportion of the declared value of the entire shipment, represented by the percentage which the full actual value of the lost or damaged article bears to the full actual value of the entire shipment if the value so declared by the shipper is less than the full actual value of the shipment.'

The record clearly shows that the bill of lading was not received by the shippers, Mr. and Mrs. Vandenbergh, until the shipment was received in Helena. Plaintiffs predicate their case upon this fact and allege, in effect, that because of this failure the defendant is liable for the full amount of damage based upon the common-law liability of common carriers.

The defendant's answer sets up an affirmative defense in which it relies upon the following Interstate Commerce Commission regulation: 'Liability restricted. Common carriers by motor vehicle of household goods shall not assume any liability in excess of that for which they are legally liable under their lawful bills of lading and published tariffs.' Ex Parte No. MC-19, Practices of Motor Common Carriers of Household Goods, 47 M.C.C. 119, Rule 9(a); Code of Federal Regulations, 1949 Ed., Title 49, Transportation, Sec. 176.9.

Defendant's theory is that because of this regulation, plaintiffs were bound by the limitations of the bill of lading and the further limitation of Tariff 48c, Rule 12. This proposition is urged in spite of the fact that no bill of lading was furnished to plaintiffs when the goods were shipped, nor was there any attempt made to furnish a bill at any time prior to the arrival of the goods in Helena.

The main question for our decision is whether the above proposition is a correct statement of the law. Today, it is elementary that questions relating to the limited liability of interstate common carriers are governed by Federal law. Boston & Main R. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L.R.A.1915B, 450, Ann.Cas.1915D, 593; Sayles v. Interstate Busses Corp., 187 Misc. 286, 66 N.Y.S.2d 377; New York, N. H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500; Cray v. Pennsylvania Greyhound Lines, Inc., 177 Pa.Super. 275, 110 A.2d 892.

In Caten v. Salt City Movers & Storage Co., 2 Cir., 1945, 149 F.2d 428, 431, the court had before it a case which was in many respects similar to the case now before this court. The facts, briefly stated, were as follows: Plaintiff wrote defendant requesting the approximate cost to ship some household goods. Defendant replied stating an estimate of the weight and the cost figured on that basis. Subsequently the goods were loaded and weighed and plaintiff was advised by phone that the goods weighed 4,650 pounds, was asked what value to put on the goods and was told he was allowed 30cents per pound under the government bill of lading. Plaintiff advised defendant that he carried $3,000 in insurance on the shipment and he was given a price for an additional $2,000 in insurance which the plaintiff requested that the defendant procure. There was no declaration of value other than this and no bill of lading was issued. A bill of lading was made out based upon the valuation at 30cents per pound but this bill was with the shipment and was destroyed when the van burned up.

We feel justified in quoting from this decision at length due to the similar fact situation and also due to the extensive analysis of the Federal law on this subject.

'Section 20(11) of the Interstate Commerce Act, 49 U.S.C.A. Sec. 20(11), applies to the defendant by virtue of Sec. 219 of that statute, 49 U.S.C.A. Sec. 319. It provides, insofar as here pertinent, as follows:

"Any common carrier, * * * subject to the provisions of this chapter receiving property for transportation from a point in one State * * * to a point in another State * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it * * * and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier * * * from the liability hereby imposed; and any such common carrier * * * shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it * * *, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void: * * * Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply * * * to property * * * received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section 10 of this chapter; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon.'

'After passage of the Carmack Amendment in 1906, 34 Stat. 593, both interstate carriers and shippers were chargeable with knowledge of the content of the schedules filed with the Interstate Commerce Commission and were conclusively presumed to have contracted according to them in respect to rates and liability unless there was proof of rebating or false billing. Atchison, Topeka & Santa Fe R. Co. v. Robinson, 233 U.S. 173, 34 S.Ct. 556, 58 L.Ed. 901; Great Northern R. Co. v. O'Connor, 232 U.S. 508, 34...