Opinion
No. 29830.
February 29, 1932. Suggestion of Error Overruled April 11, 1932.
1. COMMERCE.
Tariffs, rules, and regulations adopted by Interstate Commerce Commission are controlling in interstate shipments.
2. CARRIERS.
Regulations of Interstate Commerce Commission regarding interstate shipments have effect of law and cannot be amended by oral agreement.
3. CARRIERS.
Contract between interstate shipper and carrier consists of bill of lading and tariffs, schedules, and regulations of Interstate Commerce Commission.
4. CARRIERS. Only way interstate shipper and carrier can provide for shorter notice of arrival of shipment than twenty-four hour period, provided by regulations of Interstate Commerce Commission, is by written contract expressly providing therefor.
Only way interstate shipper and carrier could provide for giving of shorter notice than the twenty-four-hour period was by written contract expressly providing for the shorter period, since the tariffs, rules, and regulations of the Interstate Commerce Commission governing interstate shipments and making provision for quick delivery of highly perishable freight expressly provides that notice of arrival shall be sent or given consignee or party entitled to receive same by railroad's agent in writing, or in lieu thereof as otherwise agreed in writing by said railroad and consignee, within twenty-four hours after arrival of car and billing at destination.
5. EVIDENCE.
In suit by interstate shipper against carrier, copy of regulations of Interstate Commerce Commission governing shipment, certified to by commission's secretary, held properly admitted (Code 1930, section 1583).
APPEAL from circuit court of Noxubee county. HON. J.I. STURDIVANT, Judge.
Carl Fox, of St. Louis, Mo., and W.G. Roberds, and Roberds Malone, of West Point, for appellant.
The tariff provision has the force and effect of law and it cannot be added to, altered, amended or changed by an oral agreement. The contract between the shipper and carrier is not the bill of lading alone, but the bill of lading plus the schedules and tariffs filed as required by law.
Boston M.R.R. Co. v. Hooker, 233 U.S. 97, 58 L.Ed. 868; Hurt v. Atlanta B. A. Ry. Co., 84 So. 631; Siebert v. Erie R.R. Co., 163 N.Y.S. 111; Beers v. Erie R.R. Co., 163 N.Y.S. 114, affirmed 1919, 122 N.E. 456; Bryan v. Louisville N.R. Co., 93 S.E. 750, L.R.A. 1918A, 938; City Nat'l Bank of El Paso v. El Paso N.E. Ry. Co., 225 S.W. 391, 262 U.S. 695, 67 L.Ed. 1184; Atchinson, etc., R. Co. v. Robinson, 233 U.S. 173, 58 L.Ed. 901; Atchinson, etc., R. Co. v. Moore, 233 U.S. 182, 58 L.Ed. 901; So. Ry. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836; G.F. A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 60 L.Ed. 949; Davis v. Cornwell, 264 U.S. 560, 68 L.Ed. 848; Davis v. Henderson, 266 U.S. 92, 69 L.Ed. 182; Western Union Tel. Co. v. Preister, 276 U.S. 252, 72 L.Ed. 555; Am. Ry. Express Co. v. Daniels, 269 U.S. 40, 70 L.Ed. 154; Missouri Pacific R.R. Co. v. Prude, 265 U.S. 99, 68 L.Ed. 921; L. N.R.R. Co. v. Chatters, 279 U.S. 320, 73 L.Ed. 711.
The oral agreement between agent of the appellant and appellee was not valid.
Panhandle S.F. Ry. Co. v. Bell, 189 S.W. 1097.
The shipper as well as the carrier is charged with notice of the provisions of the published tariffs, whether they have actual knowledge or not, and they are conclusive as to the rights of the parties in the absence of facts or circumstances showing an attempt at rebating or false billing.
Atchinson T. S.F.R. Co. v. Robinson, 233 U.S. 173, 58 L.Ed. 901; Louisville N.R. Co. v. Hobbs, 190 S.W. 461; Cook v. Northern Pac. Ry. Co., 203 P. 512; Hunter v. Am. Ry. Exp. Co., 4 S.W. 847.
Chas. Strong, of Macon, for appellee.
The tariff provision appellant attempted to introduce in this case, were not sufficiently proven to be admitted as evidence, and in that they fall short of law.
The common-law liability imposed on common carriers is applicable to interstate as well as to intrastate shipments. This liability is neither increased nor diminished by the Carmack Amendment.
10 C.J. 132; Adams Express Co. v. Croninger, 226 U.S. 491, 33 Sup. Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N.S.) 257; Lehigh Valley Railway Co. v. Allied Machinery Co. of America, 271 Fed. 900.
A claim that the mere fact that there was a contract obligation of any kind as to ventilation excuses the carrier from taking any other reasonable precautions as to ventilating the tomatoes although reasonable care required further steps to be taken is untenable. Under such a claim a carrier could indirectly contract to free himself from his own negligence.
New England Fruit Produce Co. v. Hines, 97 Conn. 225, 116 A. 243.
That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary.
Adams v. Croninger, 226 U.S. 509, 57 L.Ed. 314.
The liability of a railroad company as a common carrier does not terminate until the freight has reached the point of destination in good order, notice of its arrival has been given to the consignee, and a reasonable time allowed for its removal. This is the law irrespective of any custom on the part of the railroad companies.
Y. M.V.R. Co. v. Blum, 102 Miss. 303; Gulf Chicago R.R. Co. v. Horton, 84 Miss. 490, 36 So. 449.
The carrier must show a full performance of duty with respect to what was shipped according to its nature, and when that showing is made and that the injury was from an excepted cause in the contract, liability cannot be fixed on the carrier except by proof of a want of due care and diligence which must depend on circumstances and the nature of the articles shipped.
Chicago, St. Louis New Orleans R. Co. v. Abels, 60 Miss. 1017.
The carrier is relieved from liability if it shows that it has provided suitable means of transportation and exercised that degree of care which the nature of the property requires.
L.N.O. T.R. Co. v. Bigger, 66 Miss. 319, 6 So. 234.
The billing by the railroad put the agents of the carrier upon notice that the car was loaded with perishable property and it was the duty of the carrier to use ordinary care to protect it from injury.
St. L.S.W.R. Co. v. Jackson, 118 S.W. 853, 55 Tex. Civ. App. 407.
Whenever the situation or condition of the goods from accident or from any cause becomes such as to require special care or attention the carrier must put himself in the place of the owner and do for them all that might reasonably be expected of a prudent and careful person and if necessary it would be his duty to incur any expense in their preservation which their value would justify and which their condition might make necessary. His contract and his obligation is not only to carry the goods, but to carry them safely; and when they become exposed to the danger of destruction from their own inherent infirmity or from any cause for which the carrier is not accountable, the law makes it his duty to employ at least a reasonable degree of skill and diligence to preserve them, and if he fail to do so it will be accounted negligence, and he will be liable for the loss though the actual proximate cause of it may be one for which but for his negligence he would be in nowise responsible.
Hutchinson on Carriers (3 Ed.), sec. 646; Beard v. I.C.R.R. Co., 79 Iowa, 518, 44 N.W. 800, 7 L.R.A. 280, 18 A.S.R. 381; Colsch v. C.M. St. P.R. Co., 117 N.W. 281; Winslow v. Chicago Alton R. Co., 170 Mo. App. 617, 157 S.W. 96; Vernon v. American Railway Express Co., 222 S.W. 913.
Under its common-law duty a carrier is bound to use all reasonable effort to deliver all shipments received by it in a reasonable length of time under the circumstances proved, having due regard for the character of the shipment, the apparent necessity for its speedy delivery, if of a perishable nature, and all other facts in the case. This duty is in no way dependent upon an express contract and the carrier's liability is not affected by the fact that the bill of lading is silent on the subject.
Hardesty v. Am. Ry. Exp. Co., 119 A. 681.
Appellee brought this action in the circuit court of Noxubee county against the appellant to recover damages to two hundred twenty-five colonies of bees shipped by appellee from Bogalusa, Louisiana, and consigned to himself at Macon, in this state, and delivered at their destination by appellant, which damages were alleged to have been caused by appellant in failing to notify appellee at once of the arrival of the bees at their destination according to a verbal agreement to that effect had between the parties. There was a trial resulting in a verdict and judgment in the sum of three hundred seventy-two dollars and five cents, from which judgment appellant prosecutes this appeal.
We have reached the conclusion that appellant was entitled to a directed verdict in its favor, which was requested and refused by the court, and therefore in stating the case we shall set out every material fact favorable to appellee which the evidence either establishes directly or by reasonable inference.
Appellee either had or was establishing an apiary in Noxubee county in this state. He had an apiary near Bogalusa, Louisiana. He desired to close his apiary at Bogalusa and move his bees to Macon. On the 19th of March, 1929, the appellee, under a uniform interstate bill of lading, shipped the bees by railroad freight from Bogalusa, Louisiana, by way of Meridian in this state, and from there over appellant's line of railroad to Macon, consigned to himself. The shipment consisted of two hundred twenty-five colonies of bees. Some days before the bees were shipped appellee saw appellant's agent at Macon and informed him of the intended shipment. The appellee impressed on the agent the necessity of the immediate unloading on the arrival of the bees. He explained to him that the bees while moving in transit would not suffer because the movement of the train would cause the air to sufficiently circulate among them to keep them alive, but that it would not do to permit them to stand in loaded cars for any considerable length of time for there would be a want of sufficient air circulating among them, which would result in their damage or destruction. In view of these facts appellee requested the appellant's agent at Macon to notify him at once on the arrival of the bees, which the agent agreed to do. The appellant's agent denied making any such agreement, but for the purposes of this decision appellee's testimony to that effect will be taken as true. Appellee lived about a mile from Crawford, a station on the appellant's line of railroad. Crawford is about twenty miles northwest of Macon. The bees arrived in Macon at five twenty-two on the morning of March 21, 1929. About eleven o'clock of the same morning the appellant's agent in Macon deposited in the mail at Macon a written notice of the arrival of the bees addressed to appellee, the consignee, at Macon, that being the address in the bill of lading. The appellee was expecting the arrival of the bees on the day they did arrive. Before he received the written notice he had appellant's agent at Crawford call up its agent at Macon and ask if the bees had arrived. Appellant's agent at Macon informed the agent at Crawford that they had arrived. This occurred about four-thirty P.M. the same day as the arrival of the bees. So the undisputed evidence was that the bees arrived at their destination at five twenty-two A.M. on March 21, 1929, and about four-thirty P.M. of the same day appellee had notice of their arrival. Appellee and his helpers did not go to Macon and unload the bees on the afternoon of the notice of their arrival, but went the next morning, arriving about seven o'clock, and began to unload the bees around nine or ten o'clock in the morning. However, the evidence for the appellee, which was undisputed, showed that the bees could not have suffered any injury on account of remaining in the cars the latter part of the afternoon and during the night; that the injury occurred during the late morning and early afternoon when the sun was shining and no air was circulating among the bees. The evidence showed that when the bees were unloaded about thirty colonies were dead and about ninety colonies badly injured.
The question is whether or not the verbal agreement between appellee and the appellant's agent at Macon for immediate notice of the arrival of the bees was a valid contract binding on appellant. As above stated, the bees were shipped from Bogalusa, Louisiana, to Macon in this state under a uniform interstate bill of lading. The bill of lading contained this, among other provisions: "Received subject to the classification and tariffs in effect on the date of the receipt by the carrier of the property described in the original bill of lading at Bogalusa, Louisiana, March 19, 1929." There is no notation on the bill of lading that appellant's agent at Macon should give appellee immediate notice of the arrival of the bees at their destination. The bill of lading was made an exhibit to appellee's declaration.
On the trial of the case appellant introduced in evidence a certified copy of the tariffs, rules, and regulations of the interstate commerce commission governing interstate shipments of this character. The duties of a delivering railroad with reference to giving the consignee notice of the arrival of a shipment are contained in section A, under the caption "National Car Demurrage Rules and Charges," in this language: "Section A. . . . Notice of arrival shall be sent or given consignee or party entitled to receive same by this railroad's agent in writing, or, in lieu thereof, as otherwise agreed to in writing by this railroad and consignee, within twenty-four hours after arrival, of car and billing at destination, such notice to contain car initials and number, point of shipment, contents, and if transferred in transit, the initials and number of original car. When address of consignee does not appear on billing, and is unknown, the notice of arrival must be deposited in United States mail enclosed in a stamped envelope bearing return address, same to be preserved on file, if returned. An impression copy shall be retained, and when notice is sent or given on a postal card the impression shall be both sides. . . . In case a car subject to Rule 3, Section C, Paragraph 1, is not placed on public delivery track within twenty-four hours after notice of arrival has been sent or given, notice of placement shall be sent or given to consignee."
Appellant's contention is that this regulation is controlling and that any agreement made between the carrier and the shipper not authorized by the regulation is void. It will be noted that the regulation expressly provides that notice to the consignee of the arrival of a shipment must be in writing "or, in lieu thereof, as otherwise agreed to in writing by this railroad and consignee, within twenty-four hours after arrival." (Italics ours.) The appellee takes the position that this regulation is a mere demurrage rule for the purpose of fixing demurrage charges, and has no application to special agreements as to notice between the carrier and the consignee on the arrival of the shipment.
We are of opinion from its plain language that the regulation covers the entire duties of the carrier with reference to notice to the consignees of the arrival of shipments, and that in adopting the regulation the interstate commerce commission did not have in mind alone rules for determining demurrage charges, but also rules for the speedy unloading of shipments of freight by consignees. The regulation makes provision for the quick delivery of highly perishable freight, for it provides that by agreement in writing between the carrier and the shipper they may prescribe the time within which notice must be given the consignee of the arrival of the shipment. In other words, the regulation provides that by written agreement the parties may stipulate that notice of the arrival of the shipment must be given the consignee within a shorter time than the twenty-four-hour period.
The tariffs, rules, and regulations adopted by the interstate commerce commission are controlling in all interstate shipments. Their purpose was to bring about uniformity and equality in rates, as well as in the rules, regulations, and practices of the carriers. The cardinal purpose was to prevent discriminations and favoritism among shippers. The tariffs and rules and regulations of the interstate commerce commission have the effect of law and cannot be added to, altered, amended, or changed by any oral agreement. The contract between the shipper and the carrier is made up, not of the bill of lading alone, but of the bill of lading, plus the tariffs, schedules, and the other governing rules and regulations of the interstate commerce commission. Boston M.R.R. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L.R.A. 1915B, 450, Ann. Cas. 1915D, 593; Atchison, T. S.F. Ry. Co. v. Robinson, 233 U.S. 173, 34 S.Ct. 556, 58 L.Ed. 901; Southern R. Co. v. Prescott, 240 U.S. 632, 36 S.Ct. 469, 60 L.Ed. 836; Georgia, F. A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948; Davis v. Cornwell, 264 U.S. 560, 44 S.Ct. 410, 68 L.Ed. 848; Davis v. Henderson, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182; Louisville N.R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711.
We hold, therefore, that the only way the shipper and carrier can provide for the giving of a shorter notice than the twenty-four-hour period is by written contract expressly providing for the shorter notice, and it appears that such a stipulation ought to be noted on the bill of lading, because the bill of lading is the contract of shipment between the parties.
The appellee objected to the introduction of the tariffs and rules of the interstate commerce commission. They were admitted in evidence over appellee's objection. Appellee argues that they were not properly proven. We do not understand from appellee's brief the exact ground upon which it is claimed the tariffs and rules are not legally proven. Section 1583, Code of 1930, provides that copies of records, books, and files belonging to offices of the United States, certified by the officer having charge thereof, shall be competent evidence in all cases where the originals or sworn copies could be admitted. The copy introduced was properly certified to by the secretary of the interstate commerce commission. We do not think there is any merit in appellee's contention.
Reversed, and judgment here for the appellant.