Bassett v. Chicago & Northwestern Railway Co.

The following opinions were filed December 3, 1918: Siebecxcer, J. The rights and liabilities of the parties to this action are governed by the act of Congress of June 29, 1906, regulating interstate commerce. By sec. 20 of this act (Carmack Amendment, 34 U. S. Stats. at Large, 584, ch. 3591) Congress has fixed the liability of carriers respecting loss and damage of interstate shipments. This legislation has been repeatedly declared by the federal supreme court to supersede state regulation on the subject and to provide a uniform system of regulation and rules fixing the liability of interstate carriers and prescribing the effect of bills of lading. Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148; Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391; Missouri, K. & T. R. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397. In the Croninger and other cases the provisions of the Carmack amendment were held to impose on the initial carrier liability for loss and damage caused by any connecting carrier as well as for its own defaults, and that its contract of shipment is binding on all carriers for the entire transportation. Cleveland, C., C. & St. L. R. Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177; Georgia F. & A. R. Co. v. Blish M. Co. 241 U. S. 190, 36 Sup. Ct. 541. Under the act every initial carrier is required “to issue a receipt or bill of lading” upon receipt of a shipment, which constitutes the contract between the shipper and all the carriers. Under the act the parties may agree upon a valuation of the property shipped for the purpose of charg [622] ing the published rates prescribed under the act, based upon valuation, and a carrier is obligated to charge such rates to carry out the purposes of Congress in regulating interstate transportation to secure uniformity of rate and prevent unjust discrimination. Such published rates are presumed to be equally within the knowledge of carrier and shipper, and both are bound by them as a matter of law. Chicago & A. R. Co. v. Kirby, 225 U. S. 155, 32 Sup. Ct. 648; Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391; Boston & M. R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526; Great Northern R. Co. v. O'Connor, 232 U. S. 508, 34 Sup. Ct. 380. In the O’Connor Case the court declared: “But so long as the tariff rate, based on value, remained operative, it was binding upon the shipper and carrier alike, and was to be enforced by the courts in fixing the rights and liabilities of the parties. The tariffs are filed with the commission and are open to inspection at every station. In view of the multitude of transactions, it is not necessary that there shall be an inquiry as to each article, or a distinct agreement as to the value of each shipment. If no value is stated, the tariff rate applicable to each state of facts applies. ... If sued for their loss it [the carrier] is liable only for the loss of what the shipper had declared them to be in class and value.” The connecting carrier’s liability to a shipper was considered in Missouri, K. & T. R. Co. v. Ward, 244 U. S. 383, 37 Sup. Ct. 617, and it was there held: “While the receiving carrier is thus responsible for the whole carriage, each connecting road may still be sued for damages occurring on its line; and the liability of such participating carrier is fixed by the applicable valid terms of the original bill of lading.” Bichlmeir v. M., St. P. & S. S. M. R. Co. 159 Wis. 404, 150 N. W. 508; 10 Corp. Jur. § 894, p. 541. It is obvious that the shipment of this mare was an interstate shipment and that the provisions of the interstate commerce act apply. There is no dispute but that the ship [623] per paid an alternative rate based on a $150 valuation of the mare. This legally limits the amount plaintiff is entitled to recover for loss and damage to her for any defaults of the carriers in transporting her to destination. In view of the state of the case on this point it is immaterial whether the alleged damage was the proximate result of ordinary or gross negligence as defined in the law of this state. The defendant contends that there is no evidence in the case to support the finding of the jury that defendant was guilty of either gross or ordinary negligence. We have examined the evidence and find that the evidence tending to show the condition of the mare upon her arrival at Mani-towoc was sufficient to warrant an inference by the jury that she had not been properly cared for during shipment and that such condition was attributable to a lack of water and food combined. If the mare was in fact mistreated as alleged, then such mistreatment is partly attributable to the carrier who had charge of her before defendant received her as delivery carrier; but this fact cannot affect defendant’s responsibility to the shipper for the whole damage. Under such a state of facts the carriers are joint tort-feasors. “Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it. . .. . It is not necessary that they be acting together or in concert if their concurring negligence occasions the injury.” 38 Cyc. 488, 489, and cases cited in the note; 10 Corp. Jur. § 894, p. 542; Baltimore & O. S. W. R. Co. v. J. A. Wood & Co. 130 Ky. 839, 850, 114 S. W. 734; Georgia F. & A. R. Co. v. Blish M. Co. 241 U. S. 190, 36 Sup. Ct. 541. It follows that the plaintiff is entitled to recover his damage to the mare from this defendant as a joint wrongdoer, not to exceed,' however, $150 in amount, this being the valuation recognized by the published tariffs, rates, and [624] rules, pursuant to the interstate commerce act as corresponding to the freight rate he paid for this shipment. In Tradewell v. C. & N. W. R. Co. 150 Wis. 259, 136 N. W. 794, this court disregarded the published tariffs, schedules, and classifications as to alternative rates based on valuation of the articles shipped, and allowed recovery of the value of the shipment in excess of the value limited by the rate paid for the shipment. In so far as this case conflicts with the rule of the federal cases above cited, it must be deemed overruled. By ihe Court. — The judgment appealed from is modified by limiting plaintiff’s right to recover damages to the sum of $150, and as so modified the judgment is affirmed. The appellant to recover costs and disbursements in this court.