Chicago, R. I. & G. Ry. Co. v. Shroyer

HUFF, C. J. The appellee, Shroyer, brought suit against the Chicago, Rock Island & Gulf Railway Company to recover damages in the sum of $1,900, on account of alleged injury to a shipment of cattle from Glen Rio, Tex., to Langford, Miltonville, and Salina, Kan., on April 22, 1914. It was alleged that 3 of the animals were lost, and 10 were so injured as to die, and that the remainder of the shipment was depreciated in market value by reason of delay and improper handling en route. The railway company answered, after general denial that the contract controlling the rights of the parties entered into at the time of delivering the cattle stipulated, as a condition precedent to bringing any suit for damages on account of loss or injury to the property covered by the contract, that the shipper give notice in writing of the claim for such damage toi some general officer, claim agent, or station agent of the defendant company not later than 90 days after the date of the loss or injury claimed, which stipulation the defendant pleaded the plaintiff had failed to comply with; and further pleaded a stipulation as a condition precedent to claiming or recovering damage for any loss or injury to the stock that the shipper should give notice in writing of the loss or injury to some general officer, claim agent, or station agent, or to some officer of the delivering line before the stock was moved from the place of destination, and that such notice in any event to be given within one day after the delivery of the stock at destination, in order that such claim might be fully and fairly investigated, which stipulation the defendant averred was not given; and it further pleaded that the stipulation in the contract, providing that no suit or action against the defendant j for the recovery of any claim should be susainable in any court unless such suit or ac-I tion should be commenced within six months next after the cause of action accrued, which stipulation the defendant pleaded was not complied with; that the suit was filed long after the expiration of said time. It further pleaded that this was an interstate shipment, controlled by the federal laws, and that the defendant had made, filed, and published tariffs and schedules regulating shipments of this character, which tariff and schedules gave the shipper the option of shipping at carrier’s risk, without limitation or liability or at a lower freight rate at the owner’s risk, which latter shipment would be controlled by the live stock contract. The plaintiff answered by supplemental petition that the agents of the carrier at destination knew the condition of the cattle when they arrived, and that the plaintiff filed written claim for damage with the general agent of the defendant at Amarillo, Tex., about a month after the shipment, and that thereafter, on several occasions, there were negotiations between the plaintiff and the general agents with reference to the claim and between plaintiff and J. S. Jones, the defendants’ traveling claim adjuster, which negotiations amounted to a waiver of the stipulation providing for the filing of suit within six months, and that except for such conversations and negotiations suit would have been filed within six months. We have decided to consider only one question presented under the eighth, ninth, and tenth assignments, and other assignments, assailing the verdict of the jury. The general proposition presented by appellant under these various assignments is: “The provisions of paragraph 15 of the contract cannot 'be legally waived, and the court in permitting such waiver deprived defendant of its lights and defenses under the federal law.” . The fifteenth provision of the bill of lading is: “That no suit or action against the first party for the recovery of any claim by virtue of this contract shall be sustainable in any court of law or equity unless such suit or action be commenced within six months next after the cause of action shall accrue, and should any suit or action be commenced against the first party after the expiration of six months the lapse of time shall be constituted conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.” The first party named in the contract is the appellant company. The suit was not instituted until more than a year after the cause of action accrued. Without giving the evidence admitted over the objection of the appellant, we shall treat it as admissible, and when considered as a whole, that it was sufficient to show waiver by estoppel of the provision of the contract above set out. [1] Under the Interstate Commerce Act relative to carriers, the provision of the contract is valid under the holdings of the Su [775] preme Court of the United States, and by the courts of this state. Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 550; Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Betka v. Railway Co., 189 S. W. 532; Railway Co. v. Smyth, 189 S. W. 70. [2, 3] The railroad having a lawful right to enter into such a contract, and being required by the act to treat all shippers upon equal terms, and by no device whatsoever to give one shipper a more liberal contract than another, in the absence of evidence to the contrary, the presumption will prevail that the contract of shipment in this case was a lawful one, and that both appellant and appellee knew the law. An interstate carrier is entitled to the presumption that it is conducting its business lawfully. Railway Co. v. Beaham, 242 U. S. 148, 37 Sup. Ct. 43, 61 L. Ed. 210. [4] Contracts for interstate shipment are governed by the acts of Congress, the agreement of parties, and the common-law principles accepted and enforced in federal courts. Beaham Case, supra. When enforcement of the principles of the common law would, as formerly applied by the courts, conflict with the act of Congress on the subject, or render the spirit or intent of the act with reference to discrimination or rebates nugatory, we apprehend the federal courts would not hesitate to give effect to the act over the principles of the common law. [5] The contract of shipment in this case, in so far as lawful, fixed the mutual obligations of the parties for the services to be performed in the transportation of the cattle and the liability and responsibilities of the parties thereunder. A provision of this contract, lawful within itself, we do not think can be enforced as to one shipper and waived as to another. The courts will not open the door for such discrimination between parties or rebating as to one. Railway Co. v. Banda, 187 S. W. 358. In this case the road never admitted any liability, or that it was negligent. All that may be said with reference to the matter is that by its conduct it induced the appellee to believe that it was not insisting upon the six months’ limitation fixed by the contract of shipment. If the road could not by express agreement give the shipper in this ease a longer time to institute suit, which was not given to all others, then it could not do indirectly what it could not do directly. -The contracts of shipment in this case stipulate, in consideration of the reduced rate charged and other considerations, that it was mutually agreed between the parties that: “Each and every carrier receiving said cars for transportation shall be deemed to adopt the terms and conditions hereof and assume the like liabilities, and shall be entitled to all the provisions, exemptions, and all limitations of liability and other stipulations, the measure and adjustment of damages herein contained.” This contract on its face shows to have been issued in consideration of the lower rate allowed to shippers, and that it was not therefore at the carrier’s risk, as provided by the tariff rates which the Interstate Commerce Commission. Clause 15, heretofore set out, follows the above provision. In the case of Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836, it is said: “No carrier may extend ‘any privileges or facilities’ save those which have been duly specified; and, as the terminal services incident to an interstate shipment are within the federal act and the condition of liability while the goods are retained after notice of arrival are stipulated in the bill of lading under the filed regulations, the conditions thus fixed are controlling, and parties cannot substitute therefor a special agreement.” See, also, Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453. The bill of lading stipulated for the adjustment of damages by giving notice within the specified time and for instituting suit for damages received while in course of transportation, within six months. Clause 15 expressly provides, if suit is commenced after six months, “the lapse of time shall be constituted conclusive evidence against the validity of such claim.” If the appellant could waive this provision one party shipping could prove his claim, but if it should not waive as to another a failure to file suit in time is conclusive evidence as to such against the validity of the claim. This would be nothing less than discrimination between the two shippers. In the case of Phillips v. Grand Trunk Railway Co., 236 U. S. 662, 35 Sup. Ct. p. 444, 59 L. Ed. 774, the Phillips Bumber Company filed suit for overcharge on freight. Upon a petition of a different company the Interstate Commerce Commission found that the road’s advance of two cents on the freight charges unjust. After this decree the Phillips Bumber Company brought suit for overcharges which under the decree of the Commission it was entitled to recover. The lower court sustained a general demurrer to the complaint of the Phillips Company, and from a judgment rendered thereon the case was taken to the Supreme Court. It was urged that under the statutes of Michigan a defendant was not permitted to take advantage of the statute of limitation by a general demurrer, which statute we presume is somewhat like our own in requiring that the bar of limitation be specially pleaded. Mr. Justice Ba-mar, for the Supreme Court, said in that case in part: “This will more distinctly appear by considering the requirements of uniformity which, in this, as in so many other instances, must be borne in mind in construing the commerce act. The obligation of the carrier to adhere to the legal rate, to refund only what is permitted by law, and to treat all shippers alike would have made it illegal for the carriers, either by silence or by express waiver, to preserve to the Phillips Company a right of action which the statute required should be asserted within a fixed period. To have one period of limitation where the complaint is filed before the Commission, and the varying periods of limitation of the different states, where a suit was brought in a court of competent jurisdiction, or to permit a railroad [776] company to plead the statute of limitations as against some, and to waive it as against others, would be to prefer some and discriminate against others, in violation of the terms of the commerce act, which forbids all devices by which such results may be accomplished. The prohibitions of the statute against unjust discrimination relate, not only to inequality of charges and inequality of facilities, but also to the giving of preferences by moans of consent judgments, or the waiver of defenses open to the carrier. The railroad company therefore was bound to claim the benefit of the statute here, and could do so here by general demurrer.” Eater, in the case of Railway Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. p. 542, 60 L. Ed. 948, the Supreme Court recognized the principle above announced. In the latter case flour was consigned to a grocery company by the milling company. Upon its arrival it was found to be damaged, and was left with the railroad company, which company afterwards sold it. Thereafter the milling company, as the consignor in whom the title then rested, sued the railway company for damages. The railroad company pleaded the failure of the milling company to make claim for damages in writing within four months, and, unless so made, that the company should not be liable; that this provision was a part of the bill of lading. It was sought to show by the milling company that the clause did not apply for the reason that the railway company had converted the flour and thus abandoned the contract. Mr. Justice Hughes said: ‘‘But the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. Chicago & A. R. R. Co. v. Kirby, 225 U. S. 155, 56 L. Ed. 1033, 1038, 32 Sup. Ct. 648, Ann. Cas. 1914A, 501; Kansas City Southern R. Co. v. Carl [227 U. S. 639, 648, 33 Sup. Ct. 391, 57 L. Ed. 683, 6861; Atchison, T. & S. F. Ry. Co. v. Robinson, 233 U. ,S. 173, 181, 58 L. Ed. 901, 905, 34 Sup. Ct. 556; Southern R. Co. v. Prescott, supra. We are not concerned in the present case with any question save as to the applicability of the provision and its validity; and, as we find it to be both applicable and valid, effect must be given to it.” In, the above case the Supreme Court found the notice sufficient, but it nevertheless holds that to permit the railway to waive or abandon would be in violation of the act of Congress. These plain intimations of the view by the Supreme Court should not be disregarded by us. The courts of Missouri have recognized these decisions of the Supreme Court as settling the question here involved in favor of appellant’s contention, in a number of cases. Thompson v. Railway Co. (Mo.App.) 185 S. W. 1145; Kemper Mill Co. v. Ry., 193 Mo.App. 466, 186 S. W. 8; Donoho v. Railway Co., 193 Mo. App. 610, 187 S. W. 141; Johnson v. Railway Co. (Mo. App.) 187 S. W. 282; Harelson v. Railway Co. (Mo. App.) 191 S. W. 1068. The appellant in this case presents quite a number of assignments, which if our view on the above question is correct will render it unnecessary to pass upon or to further consider. The judgment will be reversed and remanded. BOYCE, J., not sitting. Footnotes [1] <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes