Clubb v. Hetzel

The opinion of the court was delivered by Hoch, J.: This was an action by a shipper to recover for the loss of household goods and other property destroyed by fire while being — 595 — transported in interstate movement by a common carrier by motor vehicle. A jury was waived and the case tried to the court. The controlling question in the trial court and upon this appeal is whether under the facts and circumstances shown, the carrier was liable under the common law or under a contractual limited liability provided for by federal law and the rules of the interstate commerce commission. At the opening of the trial in the lower court it was stipulated between the parties that if the common-law rule applied, the amount recoverable should be |6,600, and that if a limited liability was effectively agreed upon between the parties, the amount of the recovery should be $2,200. The trial court found the defendant liable under the common law and gave judgment for the plaintiff in the sum of $6,600, less a credit of $133.50 for freight charges on another shipment transported for the plaintiff by the defendant. From that judgment, defendant appeals. The evidence consisted of oral testimony of the plaintiff and of the defendant, and his wife, and various exhibits in writing. Insofar as the finding of the trial court relates to questions of fact, we are concerned only with whether there was substantial evidence to support such findings. Appellee testified that on July 5, 1946, he went to the office of the appellant,. Hetzel, in Lawrence and talked to him about moving his property from Stillwater, Okla., to Lawrence. Hetzel told him he could furnish the service and showed him a large cab trailer transport truck with the sign “Lawrence Transfer Company,” and over at the side on the corner “Aero-Mayfiower Company” and the statement “Exclusive Agency.” He told Hetzel that he much preferred the Aero-Mayfiower service, and Hetzel said that he would furnish it if he could. That day or the next day Hetzel gave him blanks, in triplicate, two of which he was to return and one of which he was to keep. He took them with him to Oklahoma, signed two of them and returned them. On July 7,'1946, he wrote a letter from Still-water, Okla., addressed to Park Hetzel, Jr., “Proprietor, Lawrence Transfer and Storage 'Company at Lawrence” to which reference will later be made. The truck arrived at Stillwater on July 30. The truck was not the Aero-Mayfiower truck which Hetzel had showed him. It had no such sign painted on either side. He was there and saw the trucks that were loaded. The property was loaded by the men who accompanied the truck. He first saw a bill of lading about — 596 — three days later which was after the first truckload had burned. There was a public weighing scale less than a mile and a half from where the truck was loaded. He learned from Hetzel in a telephone conversation on the evening it was loaded that the truck had caught fire and that the contents were a total loss. A second truck arrived two days later and took the rest of his goods to Lawrence. He arrived at Lawrence before the second truckload arrived and was told that the-goods were there and was given a bill of lading to sign, but he refused to sign it. Appellee further testified that he did not know either Hetzel or his wife prior to going to their office, but had heard of the AeroMayflower Company and had heard that Mr. Hetzel was agent for that company before he went to his office. He had talked with both Hetzel and his wife on both occasions. One of them explained the proposition of rates but he didn’t remember seeing a copy of the tariff until after the fire; that Schedule A was referred to in the Aero-Mayflower order for service and as far as he remembered he learned of Schedule A from it. He did not remember that Mrs. Hetzel explained the proposition of the thirty-cent released value. He was given blanks to work over and return. Mrs. Hetzel spoke something about figuring weight, but he didn’t remember that she figured the thirty-cent value or told him how much he would receive if the shipment should be destroyed. His remembrance was that he figured out “Exhibit 5” (not here shown) to see whether one truck would carry all the goods. He wanted to know how much it was going to cost and which one of the rates the goods were to be shipped under. He didn’t remember the term “released value” but supposed it was used. He didn’t remember that Mrs. Hetzel figured the amount they would be liable in case of loss. He saw the document, the Aero-Mayflower bill or order for service, but was not very clear on the application of thirty cents per pound released value, with application of Table A. Hetzel told him he was a representative of Aero-Mayflower and they discussed how the shipment would be handled. Hetzel told him he would use the Aero-Mayflower truck if their schedule fitted his schedule and if it did not, he would send his own truck down. He ordered the service on July 7 as of July 30. The appellant Hetzel testified that he was the owner and manager of Lawrence Transfer and Storage Company; that he talked to the appellee twice before moving the goods; that his wife had been talking with appellee, checking as to the size of the load and had — 597 — turned the matter over to him. Appellee wanted to know what it would cost him and he gave him rates and told him their estimate was on the basis of the weights and it would cost him so much if he used Class I, Table A. They went into the matter of insurance because he told the appellee that the rate quoted was limited to a released value not to exceed thirty cents per pound for each article, and that if he had a higher value that would cost him more than the quoted rate. Appellee wanted the shipment made as near to the date suggested as possible and wanted the Mayflower to take the shipment if it could and, if not, for him to take it. When the appellee looked at the truck of the Aero-Mayflower Company he was told that he didn’t know that they could use that truck as it might be out of town. Appellee replied he didn’t care which way, but he wanted to be sure that the truck was there at a definite time. He went into the matter of rates very carefully. It is unnecessary to recite further testimony on the part of appellant, since it deals largely with matters on which there was more or less of a conflict, or as to matters not material to the present issue. The “order for service” forms which, as heretofore noted, were furnished in triplicate to the appellee, were supplied by the AeroMayflower Transit Company, and the name of that company was shown in large type at the top of the form. The two copies of these forms returned to appellant by appellee were signed by appellee and had .been filled in by him to the extent of writing in the name and address from which the property was to be obtained and to which it was to be delivered. The forms did not, however, carry any information as to the estimated cost of the transportation services or any specific information as to the estimated weight of the shipment, nor were they filled out in the place provided for declaring the released value. The forms did contain the following printed statement: “Shippers Are Required to Declare in Writing the Released Value of the Property— “(1) When released value does not exceed 30$ per pound, per article, Transportation Rates shown in Table A of Tariff will apply. “(2) When released value exceeds 30$ per pound, per article, but does not exceed 75$ per pound, per article, Transportation Rates shown in Table B of Tariff will apply. “(3) When released value exceeds 75$ per pound, per article, but does not exceed SI .50 per pound, per article, Transportation Rates shown in Table C of Tariff will apply.” — 598 — The above order forms were enclosed by the appellee in the following letter: “July 7,1946 “Park Hetzel, Jr., Proprietor “Lawrence Transfer and Storage Co. “733 New Hampshire Street “Lawrence Kansas “Dear Mr. Hetzel: “On looking up the date, I find that summer commencement here is July 27; but since we cannot get possession in Lawrence before the first, we cannot take advantage of the three or four July days except for packing. What I should like to do is to have our truck-load of goods arrive at 624 Kentucky Street on the morning of August 1. Please let me know as soon as you can about what hour, on what day, your truck will reach the above address for loading, as closely as you can* calculate it, so that we may have the stuff all ready. “We shall drive up with a little trailer load of our own so as to< be at the Lawrence address when the van arrives, to get the stuff in the right rooms. “I enclose the signed order (two> copies). You forgot to tell me whether I should sign the order for Insurance. If the insuring is not a separate transaction, when the normal 30c value per pound is what I intend you to insure for, since Table A of the Tariff automatically applies, please cross out my second signatures. I signed the Insurance Order to save time, in case these signatures are needed even in the standard transaction. The amount to be filled in, if it is a separate matter, should be the full 30c value for the entire poundage; for if there were a total loss, this rate would not cover full replacement of the ‘sound value’. “Yours sincerely, “M. D. Clubb” When the second load was received, appellant submitted a bill of lading covering both truckloads. This bill of lading which appellee refused to sign, was offered in evidence. Appellant offered in evidence copy of the rules and regulations issued by the interstate commerce commission covering the tariff under which he claimed the appellee had agreed that the goods should be shipped. These regulations are lengthy and it will suffice for the present purposes to quote the following pertinent provisions: “RULE 1 “Property Subject to Uniform Household Goods Bill of Lading. “(a) Unless otherwise provided, when property is transported subject to the provisions of this tariff, or as amended, the acceptance and the use of the Uniform Household Goods Bill of Lading as described herein is required. “(b) The rates shown herein are reduced rates conditioned upon the use of the Uniform Household Goods Bill of Lading. Consignor, at his option, may elect not to accept the terms of the Uniform Household Goods Bill of Lading, — 599 — and in lieu thereof to have the carrier transport the property with carrier’s liability limited only as provided by common law and by the laws of the United States and the several States insofar as they apply, but subject to the terms and the conditions of the Uniform Household Goods Bill of Lading insofar as such terms and conditions are not inconsistent with such common carrier’s liability; the rate charged therefor will be 100 percent higher than the transportation rate contained in this tariff as would apply for such shipment if offered for transportation at a released value not exceeding 30 cents per pound, per article. “RULE 2 “Insurance. “The cost of insurance against marine risk or any insurance in the name of the shipper, or for the benefit of the shipper, will not be assumed by the carrier. “RULE 3 “Declaration of Value. “(a) Shippers are required to state specifically, in writing, the agreed or declared value of the property. “(b) Valuations shall be declared in accordance with interstate commerce commission released rates order MC-No. 2, of January 29, 1936, and stated in cents or dollars and cents per pound per article. “(c) If shipper declines to declare the value or agree to a released value in uniting, the shipment can not be accepted. “(d) The agreed or declared value shall be deemed to relate to all services undertaken by the carrier or its agents and to each article separately and not to the shipment as a whole, and such agreed and declared value must be entered on Bill of Lading in the following form: “THE AGREED OR DECLARED VALUE OF THE PROPERTY IS HEREBY SPECIFICALLY STATED BY THE SHIPPER TO BE NOT EXCEEDING $-per pound per article.” “RULE 4 “Basis of Weight. “(a) The tare weight of each vehicle used in the transportation of household goods shall be determined by having it weighed prior to the transportation of each shipment, without the crew thereon, by a certified weighmaster or on a certified scale, and when so weighed the gasoline tank on each such vehicle shall be full and the vehicle shall contain all blankets, pads, chains, dollies, hand trucks, and other equipment needed in the transportation of such shipment. Each carrier shall retain in the vehicle, subject to inspection, a weighmaster’s certificate or weight ticket as to each such vehicle showing the tare weight, the date weighed, and a list of such equipment. “(b) After the vehicle has been loaded it shall be weighed, without a crew thereon, prior to delivery of the shipment and the net weight shall be determined by deducting the tare weight from the loaded weight, except that in instances where no adequate scale is located at origin or at any point within — 600 — a radius of 10 miles thereof, a constructive weight, based on seven pounds per cubic foot of properly loaded van space, may be used. The gross weight, tare weight, and net weight, or the constructive weight, shall be shown on the Bill of Lading and Freight Bill. “(c) In the transportation of part loads this rule shall apply in all respects, except that the gross weight of a vehicle containing one or more part loads may be used as the tare weight of such vehicle as to part loads subsequently loaded thereon, and a part load for any one shipper, not exceeding 1,000 pounds, may be weighed on a certified scale prior to being loaded on a vehicle, such part load to be accompanied by a weight ticket evidencing such weighing.” (Italics supplied.) There is no controversy here as to the transportation rates applicable under the tariff where released value not exceeding thirty cents per pound per article has been made in conformity with the regulations. Appellee’s contention is predicated primarily upon the proposition that a common carrier has a common-law liability for the full value of the goods destroyed, unless he complies fully and strictly with the provisions of the interstate commerce act, and the regulations of the commission relating to limitation of liability, and that the burden is upon the carrier to show such compliance. Appellant contends that the evidence established a substantial and sufficient compliance with the requirements for limiting a carrier’s liability. There is no need here to recite in detail the provisions of the applicable federal statutes or their legislative history. The pertinent statutory provisions are found in section 20(11) of the interstate commerce act (49 U. S. C. A. § 20 [11]). These provisions, theretofore applicable to common carriers by rail, were later made applicable to common carriers by motor vehicle (49 U. S. C. A. § 319). The statute provides, in part, 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, — 601 — 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 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 . . . 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 or agreed upon.” (Italics supplied.) Appellee contends that the appellant failed in the three following specific particulars to comply with the rules and regulations promulgated by the interstate commerce commission, compliance with which is necessary in order for the carrier to limit its liability for loss: First, he did not weigh the shipment as required; second, he did not procure a released or declared value of the shipment from the shipper in the manner provided; third, contrary to the regulations he accepted the goods for shipment without a bill of lading. It is said (with supporting citations from many jurisdictions) in 10 C. J. 110: “In the absence of proof to the contrary, the liability of a carrier is always presumed to be its common-law liability, and any party attempting to show a. greater or a less liability must assume the burden of proving the contract by which the common-law liability was affected.” This general rule is particularly applicable to one who seeks to establish some right under an exemption provision of a statute (35 C. J. S. 185, and cases cited in note 87). In Hunter v. American Ry. Express Co. (Mo. App.) 4 S. W. 2d 847, which dealt inter alia with the right of a carrier to limit its liability, it was said: “As general rule, where law gives party right on his complying with certain named conditions, he must comply therewith before right will inure to his benefit.” (Syl. H 3.) “Party seeking to avail himself of any exception to general rule carries burden of establishing facts necessary to invoke provisions of exception.” (Syl. n e.) In Wall-A-Hee v. Northern Pacific R. Co., 180 Wash. 656, 41 P. — 602 — 2d 786, it was said, with numerous cases cited in support of the statement: “Under this section, in order that the provisions of a published tariff permitting limitation of liability to a released valuation may become operative, there must be a ‘value declared in writing by the shipper or agreed upon in writing as the released value of the property.’ Without this, the carrier remains under the strict prohibition of the statute against any limitation of liability.” (p. 664.) The interstate commerce commission Rule 4, swpra, provides that the tare weight of the vehicle is to be determined “prior to the transportation” and that a contructive or computed weight of the loaded vehicle, based on seven pounds per cubic foot, may be used in cases “where no adequate scale is located at origin or at any point within a radius of ten miles thereof.” There was uncontradicted testimony that there was a licensed public scale within a mile and a half of the place where the shipment was loaded. However rigid this regulation may seem to be, it was up to the carrier to comply with it. The interstate commerce act provides that the initial carrier receiving property for transportation in interstate commerce shall issue a bill of lading therefor. (9 Am. Jur. 663, note 7; 1 Roberts Federal Liabilities of Carriers, 2d ed., pp. 736, 737.) In Behrends v. Chicago, Rock Island & Pacific Ry. Co., 198 Ill. App. 236, it was said: “A bill of lading limiting the liability of the carrier for damages for delay in shipment of livestock in order to be binding, must be delivered to the shipper at the time the stock is accepted for carriage, unless there is an agreement that it shall be delivered at a future time.” (Syl. IT 1.) Again, the carrier did not show compliance with interstate commerce commission Rule 3, swpra, as to declaration of value. It will be noted that shippers are required to state specifically, in writing, a declared value of the property, and that this declared value must be entered on the bill of lading in the form prescribed, and that if the shipper declines to declare a released value in writing “the shipment cannot be accepted.” The order form, returned by the appellee, contained no declaration of value in the place provided in the form for that purpose. No declared value wap entered on a bill of lading, no bill of lading having been issued before shipment, and the shipper declined to sign the one made out by the carrier after the goods had been destroyed. (See Mickey Finn Clothes v. Yale Transport Corp., 23 N. Y. S. 2d 84, syl. ¶ 3, 175 Misc. 242; also, — 603 — American Railway Express Co. v. Estroff, 31 Ga. App. 577, 121 S. E. 711.) The appellant, having failed to comply with the regulations, could not assert a limited liability for loss. This conclusion makes it unnecessary to consider the question whether appellee’s letter, shown above, was sufficiently clear and definite as to constitute an effective election of the lesser rate. While the trial court did not specify the grounds upon which the appellant was held to a common-law liability, it may have construed the letter as a selection of a lesser rate only upon the condition that Hetzel would secure additional insurance. If that was the intention of the shipper, it could not be said that he unequivocally chose the lesser rate. It follows from what has been said that we find no grounds for disturbing the judgment of the trial court. The judgment is affirmed.