MISSOURI, K & T R CO v. HARRIMAN BROS , 227 U.S. 657 (1913)

[227 U.S. 657, 658]   Messrs. Joseph M. Bryson, Cecil H. smith, and Alex. S. Coke for plaintiff in error.

[227 U.S. 657, 662]   Messrs. William M. Williams and J. A. L. Wolfe for defendant in error.

[227 U.S. 657, 664]  

Mr. Justice Lurton delivered the opinion of the court:

This was an action in a state court of Texas by a shipper of cattle, under a special live-stock transportation contract for a shipment from a point in Missouri to a point in Oklahoma, to recover the value of cattle killed by a negligent derailment occurring in the former state. The shipment consisted of four bulls and thirteen cows, claimed to have been very valuable 'show cattle.' They were all killed, and plaintiffs recovered their full value, $10,640, and this judgment was affirmed by the court below.

As the transaction was an interstate shipment, the case comes here upon questions which involved the validity of certain provisions in the contract of shipment when tested by the 20th section of the act to regulate commerce [24 Stat. at L. 386, chap. 104], as amended by the act of June 29, 1906 [34 Stat. at L. 593, chap. 3591, 7 U. S. Comp. Stat. Supp. 1911, p. 1304].

Aside from the question of negligence, which we assume to be closed by the verdict and judgment in the state court, the defenses pressed here are, first, that the limitation of value in case of loss or damage to $30 for each bull and $20 for each cow was a valid declaration of the valuation upon which the rate was based; and, second, that the action was not brought within ninety days after damages sustained, both being stipulations found in the shipping contract.

Those provisions in the contract which directly relate to the questions stated are as follows:

The title at the head of the contract is,- [227 U.S. 657, 665]   RULES AND REGULATIONS FOR THE TRANSPORTATION OF LIVE STOCK.

'This company has two rates on live stock.'

Then follows a paragraph in these words:

'Ordinary live stock transported under this special contract is accepted and hauled at rate named below at owner's risk, as per conditions herein set forth, with the distinct understanding that said rate is a special rate, which is hereby agreed to, accepted, and understood to be at less than published tariff rate applying thereon when transported at carrier's risk.

'All kinds of live stock, carrier's risk, will be taken under the provisions and at rates provided for by existing tariffs and classification.'

Then follows the contract described as 'Special Live Stock Contract No. 4. Executed at Pilot Grove Station, 1-30-1907.'

Passing over a number of provisions concerning the agreement upon the part of the carrier, and a number of things which the shipper assumes to do, we come to 8, which is in these words:

'8. The carrier does not ship live stock or emigrant outfit under this contract, or at the rate hereon given, upon which its liability in case of any loss or injury shall exceed the following prices per head:

Each horse (gelding, mare, stallion, mule, or jack) $100 Each pony or range horse 30 Each ox, steer, or bull 30 Each cow 20 Each calf or hog 7 Each sheep or goat 2

'Emigrant outfit (not live stock) consisting of emigrant movables, household goods, second-hand farm [227 U.S. 657, 666]   machinery, etc., when loaded with live stock, as per classification at valuation not to exceed $5 per 100 pounds in case of loss or damage, and said shipper represents and agrees that his said live stock or emigrant outfit do not exceed in value those prices, and in case of any loss or damage thereto, by carrier's negligent transportation or handling of said cars as aforesaid, it is mutually agreed, in consideration of the rate named, and which is less than the rate applying on shipments at carrier's risk, the shipper shall be entitled to recover only actual damages, but in no instance more than the stipulated valuation shown above.'

The provision of the published tariff sheet referred to in the contract is set out in the margin, preceded by the offer of counsel to file it in evidence. By a clause in the 9th

Mr. Head: We offer the following portions of I.C.C. tariff No. A- 1636, M.K. & T. Local Distance Tariff No. 2548, applying on classes and commodities:

Missouri, Kansas, & Texas Railway Co.

The 'Katy' Route.

Local Distance Tariff No. 2548

(Cancels No. 737.)

Applying on classes and commodities between stations on the Missouri, Kansas, & Texas Ry. as follows:

Between stations in

Indian territory Missouri or Kansas Missouri or Kansas And stations in Oklahoma territory Indiana territory Oklahoma territory And locally between stations in the Indiana or Oklahoma territories. Rates in Cents Per 100 lbs. Cattle. (See Rule 3.) Distance. Commodities. 380 miles and over 370. . . . Carloads. 26 1/2 Rule 3. Live stock-Continued. Limitation of liability.-Rates provided on live stock will apply only on shipments made at owner's risk, with limitation of liability on the part of the railroad company as common carrier under the terms and conditions of the current live stock contract provided by this company, the contract to be first duly executed in manner and form provided therein.

120 per cent of the rates named in this tariff will be charged on shipments made without limitations of carrier's liability at common law, and under this status, shippers will have the choice of executing and accepting contracts for shipments of live stock with or without limitation of liability, the rates to be made as provided for herein. [227 U.S. 657, 667]   section of the contract under which the cattle were shipped, it is stipulated that 'no suit shall be brought against any carrier, and only against the carrier on whose lines the injuries occur, after the lapse of ninety days from the happening thereof, any statute or limitation to the contrary notwithstanding.'

In respect of the two stipulations just referred to, the trial judge charged the jury as follows:

'The contract for shipment in this case contains, among other things, a stipulation that suit for any damages growing out of this shipment must be commenced within ninety days. You are instructed that such stipulation is void and not binding upon the plaintiffs herein.

'Said contract also contains a stipulation to the effect that if the cattle in the shipment are lost or killed, that their owners can only recover a certain fixed amount, which amount is named in said contract. You are instructed that such stipulation is void and not binding upon plaintiffs in this case, and if you should find for plaintiffs, you will fix the amount of their damages under instructions hereinafter given you.'

This charge was approved upon appeal and the judgment affirmed. The ground upon which the charge in respect to the limitation of recovery in case of loss was based was, first, that every such contract, where the loss was due to negligence, was null and void under the law and public policy of the state; and, second, that it was a contract of exemption forbidden by the Hepburn act of June 29, 1906, being the Carmack amendment of the [227 U.S. 657, 668]   20th section of the general act to regulate commerce of February 4, 1887.

That the shipper had the choice of two rates, one 20 per cent higher than the other, upon this shipment, is shown by the provisions of the shipping contract and the tariff sheets referred to therein. That the difference between the two rates was not unreasonable, the one when the cattle were not valued and the other when their value was declared, is to be assumed from the acceptance of the rates as filed with the Commission. That the 'portion' of the rate sheets in evidence does not include the 'Current Live Stock Contract' referred to in the part filed is of no vital significance. The objection was not made below. The case was proceeded with in the state court upon the hypothesis that the 'Current Live Stock Contract,' referred to in the 'portion' of the rate sheets actually in evidence, was the live stock contract executed by the parties, and had been duly filed as part of the rate sheets. It is too late to make an objection here which, if made below, might have been remedied by filing all instead of a 'portion' of the filed tariff. Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U.S. 426 , 51 L. ed. 553, 27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075. In any event, the rate sheets do provide for a choice between two rates, one with and one without a declared valuation. In one case the carrier is liable for whatever loss or damage the shipper sustains, and in the other its liability is limited to the valuation upon which the rate was based. The ground upon which the shipper is limited to the valuation declared is that of estoppel, and presupposes the valuation to be one made for the purpose of applying the lower of two rates based upon the value of the cattle. This whole matter has been so fully considered in Adams Exp. Co. v. Croninger, 226 U.S. 491 , ante, 148, 33 Sup. Ct. Rep. 148, and Kansas City Southern R. Co. v. Carl, just decided [ 227 U.S. 639 , 57 L. ed. --, 33 Sup. Ct. Rep. 391], that we only need to refer to the opinions in those cases, without further elaboration.

That the trial court and the court of civil appeals [227 U.S. 657, 669]   erred in holding this stipulation null and void because forbidden by either the law or policy of the state of Texas, or by the 20th section of the act of June 29, 1906, is no longer an open question since the decisions of this court in the cases just referred to.

Nor is there anything upon the face of this contract, when read in connection with the rate sheets referred to therein (of which the defendants in error were compelled to take notice, not only because referred to in the contract signed by them, but because they had been lawfully filed and published), which offends against the provisions of the 20th section of the act of June 29, 1906.

Neither is the valuation of cattle at $30 and $20 per head subject to impeachment as upon its face arbitrary and unreasonable. The valuation in this case was made by the consignor himself. The contract upon this point reads, 'And said shipper represents and agrees that his said live stock . . . do not exceed in value these prices,' referring to the schedule set out immediately above that declaration. That the cattle were not other than average or ordinary cattle, of no peculiar value as 'show cattle,' or otherwise, is indicated by the character of the printed form of contract signed by the consignor. After reciting that the company had two rates on live stock, it proceeds,-'Ordinary live stock transported under this special contract,' etc.

The contract here involved is substantially identical with the contract and schedule upheld in Hart v. Pennsylvania R. Co. 112 U.S. 331 , 28 L. ed. 717, 5 Sup. Ct. Rep. 151, where the transportation was 'on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding $200 each. If cattle or cows, not exceeding $75 each.'

In the case at bar it has been said that the shipper was not asked to state the value, but only signed the contract [227 U.S. 657, 670]   handed to him and made no declaration. But the same point was made in the Hart Case, when the court said:

'A distinction is sought to be drawn between a case where a shipper, on requirement, states the value of the property, and a rate of freight is fixed accordingly, and the present case. It is said that, while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the shipper. But we see no sound reason for this distinction. The valuation named was the 'agreed valuation,' the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the valuation, and that the liability should go to that extent and no further.'

It is said that the contract in the case at bar includes a valuation of all bulls and all cows at the same sum, and that this is arbitrary, and not the result of any real effort to value the particular bulls and cows to be transported. But the same objection applied to the contract in the Hart Case, where horses were valued at the same maximum value and other cattle at the same fixed sum. But here, as there, it is plain that all animals, horses and other cattle, have not a fixed value, and so the contract fixes 'a graduated value according to the nature of the animal.'

It is not unreasonable, for the purpose of graduating freight according to value, to divide the particular subject of transportation into two classes: those above and those below a fixed maximum amount. No other method is practicable; and this is a method administratively approved by the Commerce Commission.

That the value of the cattle shipped under this valuation did greatly exceed the valuation therein represented may [227 U.S. 657, 671]   be true. It only serves to show that the shipper obtained a lower rate than he was lawfully entitled to have by a misrepresentation. It is neither just nor equitable that he shall benefit by the lower rate, and then recover for a value which he said did not exist, in order to obtain that rate. Having obtained a rate based upon the declared value, he is concluded, and there is no room for parol evidence to show otherwise. Hart v. Pennsylvania R. Co. and Kansas City Southern R. Co. v. Carl, supra.

When the carrier graduates its rates by value, and has filed its tariffs showing two rates applicable to a particular commodity or class of articles, based upon a difference in valuation, the shipper must take notice, for the valuation automatically determines which of the rates is the lawful rate. If he knowingly declares an undervaluation for the purpose of obtaining the lower of two published rates, he thereby obtains an advantage and causes a discrimination forbidden and made unlawful by the 1st section of the Elkins act of February 19, 1903 [32 Stat. at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1911, p. 1309]. Texas & P. R. Co. v. Mugg, 202 U.S. 242 , 50 L. ed. 1011, 26 Sup. Ct. Rep. 628; Chicago & A. R. Co. v. Kirby, 225 U.S. 155 , 56 L. ed. 1033, 32 Sup. Ct. Rep. 648. The particular cattle were loaded by the shipper and were never seen by the company's agent. Neither was it claimed that he was informed of the value or quality of the cattle to be shipped. We see no ground upon which this contract can be held upon its face to have offended against the statute.

The court below held that the stipulation in the shipping contract, that no suit shall be brought after the lapse of ninety days from the happening of any loss or damage, 'any statute or limitation to the contrary notwithstanding,' was void.

It is conceded that there are statutes in Missouri, the state of the making of the contract, and the state in which the loss and damage occurred, and in Texas, the state of the forum, which declare contracts invalid which require the bringing of an action for a carrier's liability [227 U.S. 657, 672]   in less than the statutory period, and that this action, though started after the lapse of the time fixed by the contract, was brought within the statuory period of both states.

The liability sought to be enforced is the 'liability' of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack amendment of the Hepburn act of June 29, 1906. The validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed, is a Federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or legislation. Adams Exp. Co. v. Croninger, 226 U.S. 491 , 57 L. ed . --, 33 Sup. Ct. Rep. 148; Michigan C. R. Co. v. Vreeland, 227 U.S. 59 , 57 L. ed. --, 33 Sup. Ct. Rep. 192. The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence. Adams Exp. Co. v. Croninger, and Michigan C. R. Co. v. Vreeland, cited above; York Mfg. Co. v. Illinois C. R. Co. 3 Wall. 107, 18 L. ed. 170; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Southern Exp. Co. v. Caldwell, 21 Wall. 264, 267, 22 L. ed. 556, 558; Hart v. Pennsylvania R. Co. 112 U.S. 331 , 28 L. ed. 717, 5 Sup. Ct. Rep. 151.

The policy of statutes of limitation is to encourage promptness in the bringing of actions, that the parties shall not suffer by loss of evidence from death or disappearance of witnesses, destruction of documents, or failure of memory. But there is nothing in the policy or object of such statutes which forbids the parties to an agreement to provide a shorter period, provided the time is not unreasonably short. That is a question of law for the determination of the court. Such stipulations have been sustained in insurance policies. Riddlesbarger v. Hartford F. [227 U.S. 657, 673]   Ins. Co. 7 Wall. 386, 19 L. ed. 257. A stipulation that an express company should not be held liable unless claim was made within ninety days after a loss was held good in Southern Exp. Co. v. Caldwell, 21 Wall. 264, 22 L. ed. 556. Such limitations in bills of lading are very customary and have been upheld in a multitude of cases. We cite a few: Central Vermont R. Co. v. Soper (C. C. A. 1st C.) 8 C. C. A. 341, 21 U. S. App. 24, 59 Fed. 879; Ginn v. Ogdensburg Transit Co. (C. C. A. 7th C.) 29 C. C. A. 521, 57 U. S. App. 403, 85 Fed. 985; Cox v. Central Vermont R. Co. 170 Mass. 129, 49 N. E. 97; North British & Mercantile Ins. Co. v. Central Vermont R. Co. 9 App. Div. 4, 40 N. Y. Supp. 1113, affirmed in 158 N. Y. 726, 53 N. E. 1128. Before the Texas and Missouri statutes forbidding such special contracts, short limitations in bills of lading were held to be valid and enforceable. McCarty v. Gulf, C. & S. F. R. Co. 79 Tex. 33, 15 S. W. 164; Thompson v. Chicago & A. R. Co. 22 Mo. App. 321. See cases to same effect cited in 6 Cyc. p. 508. The provision requiring suit to be brought within ninety days is not unreasonable.

For the errors indicated, the judgment must be reversed for such further proceedings as may be consistent with this opinion.

Mr. Justice Hughes concurs in the result. Mr. Justice Pitney dissents.

Footnotes

[ Footnote 1 ] Chapter 3591, 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1304).