Winslow Bros. & Co. v. Atlantic Coast Line R. Co.
| Decision Date | 03 November 1909 |
| Citation | 65 S.E. 965,151 N.C. 250 |
| Parties | WINSLOW BROS. & CO. v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Sampson County; O. H. Allen, Judge.
Action by Winslow Bros. & Co. against the Atlantic Coast Line Railroad Company. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.
A stipulation in a bill of lading for the carriage of live stock that, in case of loss the liability of the carrier shall not exceed $100 per head, made in consideration of a reduction in freight rates, is valid.
Civil action to recover the sum of $201, the alleged value of a mule, killed while being transported from Kansas City by defendant, tried at May term, 1909, of the superior court of Sampson county, his honor O. H. Allen, judge presiding. From the judgment rendered, the plaintiff appealed.
Fowler & Crumpler and C. M. Faircloth, for appellant.
Davis & Davis and F. R. Cooper, for appellee.
The only assignment of error is to the ruling of his honor holding the plaintiffs to the value of $100 agreed upon in the bill of lading under which the live stock were shipped. The bill of lading set out in the record is identical in all respects with the one printed in full in Jones v. Atlantic Coast Line R. Co., 148 N.C. 583 62 S.E. 701, and the point was fully discussed and decided against the plaintiffs in that case. The case at bar falls squarely within the principles laid down in the opinion of the court in that case, as well as within the concurring opinion written by Mr. Justice Hoke and concurred in by Chief Justice Clark. In that concurring opinion it is well and wisely said: "This rule is particularly applicable to shipments of stock in quantities, and eminently just to both parties to such contracts, affording to the shipper a fair and reasonable shipping rate and protecting the carrier from exorbitant and unconscionable recoveries by reason of excessive valuations which it had no opportunity to ascertain or to resist successfully, and for which it has received no adequate compensation." We find nothing whatever in the record which takes the case out of that rule or distinguishes it from the Jones Case, where the subject is fully discussed and many authorities cited. It would be a work of supererogation to repeat here the reasons that led us to our conclusion.
In addition to the authorities cited in the opinion of the court, the following additional cases will be found to fully sustain our former judgment: Winslow Bros. & Co. v. A. C L. R. R., 79 S.C. 344, 60 S.E. 709; Express Co. v. Caldwell, 21 Wall. 264, 25 L.Ed. 556; Hart v. Railroad, 112 U.S. 331, 5 S.Ct. 151, 28 L.Ed. 717; Railroad v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Railroad v. Henlein, 56 Ala. 368; Railway v. Harwell (Ala.) 8 South. 649; Id., 97 Ala. 341, 11 So. 781; Railroad v. Lesser, 46 Ark. 236; Railroad v. Weakly, 50 Ark. 397, 8 S.W. 134, 7 Am. St. Rep. 104; Railroad v. Harmon, 17 Ill.App. 640; Railroad v. Sowell, 90 Tenn. 17, 15 S.W. 837; Railroad v. Davis (Tex.) 2 Willson, Civ. Cas. Ct. App. § 191; Railroad v. Caldwell (Tex.) 3 Willson, Civ. Cas. Ct. App. § 439; Zouch v. Railroad, 36 W.Va. 524, 15 S.E. 185, 17 L. R. A. 116, where many other supporting authorities are cited. In Johnstone v. Railroad, 39 S.C. 61, 17 S.E. 512, a case on all fours with this, the late Chief Justice McIver, a very able judge and a just man, delivering the opinion of the court, says:
The judgment of the superior court is affirmed.
No case of more vital importance than this to the business interests of the state, especially to all who ship freight by common carriers, is likely to arise. Great corporations with immense aggregations of capital do the bulk of the carrying business of to-day. The shipper does not, and cannot, deal on an equal footing with them. He is helpless, and is as the mere dust in the balance if the law is not strong enough to enforce just dealings with him. Bradley, J., Railroad Co. v. Lockwood, 84 U.S., at page 379, 21 L. Ed., at page 640. Legislation to this end has been recently found necessary in the enactment of statutes giving penalties where these carriers refuse to receive goods upon tender, or to carry and deliver within a reasonable time. But long ago, when carriers were less great and powerful, it was found necessary to hold, in protection to the shipper, that the carrier could not contract against its own negligence. The immense force of the legal talent employed by these great corporations has for years presented to court after court argument to withdraw from the shipper the protection of this most just and necessary rule of the common law --as will be seen by reference to the numerous cases in the reports of the various states of this Union. This has been met in some of the states by acts of the Legislature forbidding such concession to the carriers, as in Iowa, Kansas, Mississippi, Nebraska, etc., and in some others as in Texas even by constitutional provision to the same effect, and in England a partial departure from the common-law rule by the courts was promptly corrected by an act of Parliament. Where this has not been done, the farthest that any court has yielded the common-law rule that the carrier shall not contract against his own negligence is that the carrier may stipulate for a reasonable and just sum to be paid in case of loss, if there is a bona fide valuation made voluntarily by the shipper and the carrier, but the court will hold void "an arbitrary preadjustment of the measure of damages." Yet that is exactly what, by the evidence, was done in this case. There was in proof no examination of the stock in this car, by the agent of the carrier and the shipper, with a voluntary agreement as the fair average value of the mules to be paid in case of their loss. Such agreement some courts have upheld, not as a stipulation against liability for its own negligence by the carrier, but as a method of fairly adjusting the loss beforehand. The objection to this apparently fair arrangement is that it has led to the practice of which this case is an example.
Here the carrier had his "preadjusted arrangement" in the shape of a bill of lading in which it had already printed, as a part of it, the provision that if any horse or mule was killed by the negligence of the carrier, the carrier's liability should "not exceed $100 per head." The shipper was forced to take the terms the carrier offered, because the latter had prescribed of its head and power a most effective penalty of some $250 in the shape of additional freight if the shipper insisted on his common-law right to hold the carrier liable for the actual value of a mule if killed by the defendant's negligence. It was stated, and not denied in the argument here, that the alternative freight was $450 on this car load. The device resorted to requires no discussion. The carrier had as much right to make the additional freight $1,000 as $250, for the addition is so exorbitant that it shows its real purpose; the actual freight paid being $205. In Brown v. Tel. Co., 111 N.C. 187, 16 S.E. 179, 17 L. R. A. 648, 32 Am. St. Rep. 793, we held that a telegraph company could not stipulate against liability for its own negligence, though there the additional charge was only a few cents (one-half of the original charge), and that for additional service of repeating the message. Indeed the stipulation here is not even "an average." If the animal is worth ever so much more than $100 when it is lost by the carrier's negligence, the shipper can in no event recover more than $100, while if the animal is worth less, the shipper can recover, under the terms of this bill of lading, only its true value. This is not a contract, but in homely everyday language "a jug handle proposition"--all on one side. Such stipulation was held therefore invalid. Conover v. Exp. Co., 40 Mo.App. 31; Railroad v. Sowell, 90 Tenn. 17, 15 S.W. 837; Lels v. Railroad (C. C.) 52 F. 903; Calderon v. S. S. Co., 69 F. 574, 16 C. C. A. 332, and in other cases. It is not a contract besides because it was not voluntary. The shipper had to take what was tendered him. He could not pay $250 penalty to get his rights as they are recognized by the common law and our own decisions, and unrepealed by any statute. It was further not a contract because there was no actual agreement shown--which is essential to a contract--as to the valuation, no bona fide examination and valuation of the average value of the mules in this car load, which it devolved upon the defendant to prove, but merely a printed rate in the bill of lading fixing $100 as an "arbitrary preadjustment," which all courts have denounced as illegal. Railroad v. Hall, 124 Ga. 322, 52 S.E. 679, 4 L. R. A. (N. S.) 898, and notes, 110 Am. St. Rep. 170, ...
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