Christensen v. Railway Co.

252 N.W. 738, 62 S.D. 264, 1934 S.D. LEXIS 19

• Court: South Dakota Supreme Court
• Decided: February 15, 1934
• Docket: File No. 7598.
• Status: Published

Opinions

WARREN, J.

Plaintiff made a shipment of certain pedigreed breeding and show hogs over defendant’s railway from New Effing-ton, S. D., on defendant’s line and connecting carrier to himself at the Minnesota State Fair Grounds at St. Paul, Minn. The shipment was designated on the 'bill of lading and on the waybill “For Exhibit Purposes.” The uniform live stock contract as prescribed by the Interstate Commerce Commission was used. The contract was signed by the plaintiff as shipper and by the defendant’s agent at New Effington on behalf of the carrier. The contract recited that the shipment was received subject to the classifications and tariffs in effect on the date of the issuance of the agreement. There was a provision in the contract defining what was meant by ordinary live stock, another as to what was meant by other than ordinary live stock, and a provision relating to declared and agreed values. The general published tariff admitted in evidence shows the value of each hog to be $15 and no more, unless there is a specific agreement disclosing -a different value and no value was stated in the bill of lading.

Plaintiff sought recovery on account of defendant’s negligence in the shipment whereby he lost three hogs and for the care, such as labor, medicine, veterinary services, and other expenses incurred by him in caring for the sick hogs, in the total sum of $1,182.63. At the trial the defendant mantained that the extent of the plaintiff’s recovery was the basic value of $15 per hog, plus the sum of $4 (being freight paid on the three hogs, less refund) and legal, interest from September 5, 1931. The defendant offered that amount at the time of the trial, and, after the verdict awarding plaintiff $644.13, the defendant moved that a judgment non ob stante veredicto 'be entered in favor of the plaintiff for the basic value of the hogs, freight, less refund, and- legal interest.

There can be no question but that the shipment was interstate and that it was governed by the Interstate Commerce Act (49 USCA § 1 et seq.), and as such the respondent’s rights must be based upon the contract entered into.

Under all the facts the respondent’s limitation of recovery would be $15 per hog, which is consistent with the holding of the Interstate Commerce Commission in the published and filed tariffs andi incorporated by reference and by law into the written agreement of the parties. Where such a contract has been entered into and where the rate has been fixed and agreed upon, the limitation of recovery will be based upon the said rate, and the two- must automatically go together.

In American Ry. Express Co. v. Lindenburg, 260. U. S. 584, 592, 43 S. Ct. 206, 209, 67 L. Ed. 414, the court said: “Having accepted the benefit of the lower rate -dependent upon the specified valuation, the respondent is estopped from asserting a higher value. To allow him to do so would be to violate the plainest principles of fair dealing. Hart v. Pennsylvania R. R. Co., 112 U. S. 331, 340, 5 S. Ct. 151, 28 L. Ed. 717; Adams Express Co. v. Croninger [226 U. S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257], supra. In Kansas City Southern Ry. Co. v. Carl [227 U. S. 639, 33 S. Ct. 391, 57 L. Ed. 683], supra, this court said: ‘To permit such a declared valuation to be overthrown by evidence aliunde the contract, for the purpose of enabling the shipper to obtain a recovery in a suit for loss or damage in excess of the maximum valuation thus fixed, would both encourage and reward undervaluations and bring about preferences and discriminations forbidden by the law. Such a result would neither be just nor conducive to- sound morals or wise policies.’”

See, also, Strong v. Wells Fargo & Co. Express, 39 S. D. 389, 164 N. W. 967; Melody v. G. N. Ry. Co., 25 S. D. 606, 127 N. W. 543, 30 L. R. A. (N. S.) 568, Ann. Cas. 1912C, 727.

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 the contract and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. Such being the case, this court must hold that there must be a reversal upon the authorities heretofore cited and upon the further authority of American Ry. Express Company v. Daniel, 269 U. S. 40, 42, 46 S. Ct. 15, 70 D. Ed. 154; American Railway Express Co. v. Levee, 263 U. S. 19, 21, 44 S. Ct. 11, 68 L. Ed. 140; American Railway Express Co. v. Lindenburg, 260 U. S. 584, 592, 43 S. Ct. 206, 67 L. Ed. 414; Galveston, H. & S. A. Ry. Co. v. Woodbury et al, 2654 U. S. 357, 360, 41 S. Ct. 114, 65 L. Ed. 301; Kansas City So. Ry. Co. v. Carl, 227 U. S. 639, 656, 33 S. Ct. 391, 57 L. Ed. 683.

No useful purpose would be served by extending this opinion further.

The judgment and order appealed from are reversed, and the cause of action is remanded, with directions to enter judgment in favor of the plaintiff and against the defendant pursuant of defendant’s motion for judgment n. o. v. in the sum of $49, plus interest at 7 per -cent per annum from September 5, 1931, to March 4, 1933 the date of motion for judgment, together with taxable costs and disbursements below.

ROBERTS, P. J., and POLLEY and RUDOLPH, JJ., concur.