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97. The Act of June 29, 1906, c. 3591,
§ 7. 34 St;it. 593 (U. S. Comp. St. Supp.

1907, I). 00!)), is not violative of the four-



teenth amendment of the constitution,
and § 19, art. 1, Const. Galveston, etc., R.
Co. V. Crow (Tex. Civ. App.), 117 S. W.
170; Galveston, etc., R. Co. v. Piper Co.,
52 Tex. Civ. App. 568, 115 S. W. 107.

Due process of law. — .A^ct of June 29,
1906, c. 3591, § 7, 34 Stat. 584 (U. S. Comp.
St. Supp. 1907, p. 909), is not unconstitu-
tional as depriving a common carrier of
life or liberty or property without due
process of law. Galveston, etc., R. Co. v.
Piper Co., 52 Tex. Civ. App. 568, 115 S.
W. 107; Galveston, etc., R. Co. v. Wallace
(Tex. Civ. App.). 117 S. W. 1G9.

State sovereignty. — Act June 29, 1906,
c. 3591, § 7, 34 Stat. 584 (U. S. Comp.
St. Supp. 1907, p. 909), does not interfere
in any manner with the rights of a state
and is not unconstitutional as infringing
state sovereignty. Galveston, etc., R. Co.
V. Piper Co., 52 Tex. Civ. App. 568, 115
S. W. 107; Galveston, etc., R. Co. v. Crow
(Tex. Civ. App.), 117 S. W. 170.

98. St. Louis, etc., R. Co. v. Ray (Tex.
Civ. App.), 127 S. W. 281.

99. What constitutes through shipment.
— Houston, etc., R. Co. v. Lewis, 103
Tex. 452, 129 S. W. 594.

1. Southern Pac. Co. 7'. Mcadors & Co.
(Tex. Civ. App.), 129 S. W. 170.



§ 4055 CARRIERS. 3662

bill, although it names intermediate lines over which the shipment is to pass.^

Liability for Delay. — The initial carrier, in an interstate shipment, issuing a
through bill of lading and collecting the entire freight charge, is, liable for any
damages from delay in shipment over the line of any connecting carrier.-'*

Presumption of Liability. — The common-law presumption that the damage
to goods in transportation occurred on the line of the final carrier can have no
place in construing the liability over of the carrier on whose line the damages ac-
tually occurred to the initial carrier, because the right of the initial carrier to re-
cover against a connecting carrier, under the Act of June 29, 1906, giving a com-
mon carrier issuing a receipt or bill of lading to a shipper a right of recovery
against the connecting carrier on whose line occurred the actual damage, for
which the first carrier became liable to the shipper, since such right is made to
rest alone on proof that the damage occurred on such connecting line."*

Remedies of Shipper. — The act provides that nothing in the section shall de-
prive the holder of a bill of lading of any remedy under existing laws.'"*

Jurisdiction and Venue. — An action against an initial carrier to enforce lia-
bility under the Act of June 29, 1906,'' making a common carrier receiving prop-
erty for interstate shipment liable for loss of or injury to such property caused
by any connecting carrier, may be brought before the county court of the county
in which the shipment originated, and need not be brought before a federal courts
although the Act of Feb. 4, 1887,''' provides that if any common carrier subject to
the provisions of the Interstate Commerce Act shall do any act thereby prohibited
or declared unlawful, such carrier shall be liable to the person injured for the full
amount of damages, together with a reasonable attorney's fee to be fixed by the
court and taxed as costs in the case, as the action is not founded on any violation
of the Interstate Commerce Act or any of its amendments, and is not brought for
the purpose of collecting any penalty incurred for the violation of such act.^ The
state courts have jurisdiction of a suit against an initial carrier operating a line
within the state for goods lost in transit under a contract for through shipment
to another state. '^

Prerequisites to Recovery of Damages. — In an action against an initial
carrier for the value of goods consigned to defendant which were never delivered,

2. The initial carrier issued at New from New Orleans to Waco, though it

Orleans a bill of lading reciting that named intermediate lines over which the

it had received two cars of fruit to be shipment was to pass, so that the initial

transported by them and by steamers, carrier could not limit its liability to neg-

railroad companies, or forwarding lines ligence on its own line. Kemendo v,

with which it connected to Waco, Tex., Fruit Dispatch Co. (Tex. Civ. App.), 131

with as reasonable dispatch as its gen- S. W. 73.

eral business permitted; the consignment 3. Liability for delay. — Missouri, etc.,

being to Waco via a named line at Hous- R. Co. v. Carpenter, 53 Tex. Civ. App.

ton. Another provision limited the ini- 585, 114 S. W. 900.

tial carrier's liability to injuries happen- 4. Presumption of liability. — Carlton

ing on its own line. Rate Act (Act Cong. Produce Co. v. \'elasco, etc., R. Co. (Tex.

June 29, 1906, c. 3591, 34 Stat. 595 [U. Civ. App.), 131 S. W. 1187.

S. Comp. St. Supp. 1909, p. 1164]), § 7, 5. Remedies of shipper. — St. Louis, etc.,

amending the Interstate Commerce Act R. Co. v. Ray (Tex. Civ. App.), 127 S.

(Act Feb. 4, 1887, c. 104, § 20, 24 Stat. W. 281.

386 U. S. Comp. St. 1901, p. 3169), makes e. Jurisdiction and venue.— Act June 29,

any common earner receivmg property ]906, c. 3591, § 7. 34 Stat. 584 (U. S.

for transportation from a point in one Comp. St. Supp. 1907, p. 909).

state to a point in another state liable ^^ ^^^ P^^_ ^gg ^ g 2_^ g^^^^

for mjury caused by it or any earner .^g, ^^^ g_ ^ g^_ ^^^^^_

over whose lines the property passes, and > t- /

forbids the exemption of the initial car- 8. Galveston, etc., R. Co. v. Piper Co..

rier from liability by any contract. An- 52 Tex. Civ. App. 568, 115 S. W. 107,

other paragraph provides for recovery followed in Galveston, etc., R. Co. v. Wal-

over by it against the carrier on whose lace (Tex. Civ. App.), 117 S. W. 169.

lines the injury occurred. Held, that the 9. Houston, etc., R. Co. v. Lewis, 103

bill of lading was for a through shipment Tex. 452, 129 S. W. 594.



3663 inte;rstate commerce act. §§ 4055-4057

the plaintiff is under no obligation to prove that the freight had not been paid not
what the freight rate was.^"

Time for Making Claim. — A stipulation in a bill of lading issued by the ini-
tial carrier of an interstate shipment that claims for loss must be made to the
agent at point of delivery promptly after the arrival of the goods, and if delayed
for more than thirty days after due time for delivery no carrier shall be liable, is
a reasonable requirement for the protection of the initial carrier, liable for loss
or injury caused by it or any connecting carrier, and must be complied with or
the carrier is relieved from liability, unless the stipulation is waived. ^^

§ 4056. Limiting- Liability.— Under the provision of the act making the
initial carrier of an interstate shipment liable for loss on connecting lines, the
initial carrier of such a shipment can not limit its liability to damages occurring
on its own line.^- Such liability is not aft'ected by a bill of lading which stipulates
that such carrier in receiving the shipment, limited its liability to damages done
on its own line.^^

§ 4057. Recovery over against Other Carrier. — The Act of June 29,
1906, provides for the recovery over by the initial carrier against the carrier on
whose lines the damage or injury to the goods occurred. i"* A common carrier
who has been held liable in damages at the suit of a shipper to whom it has is-
sued a receipt may recover from a common carrier on whose connecting line the
actual loss or damage occurred the amount that it may have been required to pay
the shipper under the provisions of the same section. The right so granted to
the carrier giving such receipt or bill of lading can not be impaired by any agree-
ment between the shipper or holder of the receipt or bill of lading and any of the
connecting carriers. ^^ A shipper brought action against the defendant who had
issued the receipt and two other carriers, and, upon the payment of the money
to the shipper by the other carriers, the suit was discontinued as to them, and
they were given an indemnity by the shipper against all liability. If the damage
was caused by the indemnified companies, they could, under their indemnity, re-
cover over against the shipper, so that the effect would be to raise an estoppel
against the shipper's recovery from them or from the initial carrier, but that no
such estoppel would arise unless the damage was caused by the act of one of the
indemnified companies. i** Where, in an action against connecting carriers for
damages to a shipment of horses, the evidence was sufficient to sustain a judg-
ment against the delivering carrier for all the damages, it can not be heard to
complain on appeal that the judgment was against it for only one-half of the

10. Prerequisites to recovery of dam- for loss or injury to the shipment caused
ages. — Galveston, etc., R. Co. v. Piper by it or any connecting carrier, renders
Co., 52 Tex. Civ. App. .568, 115 S. W. 107. void a stipulation in a contract for an

11. Time for making claim. — Old Do- interstate shipment limiting the liability
minion Steamship Co. v. Flanary & Co., of the initial carrier to loss occurring on
111 Va. 81f), 69 vS. E. 1107. its own line. Old Dominion Steamship

12. Limiting liability. — Southern Pac. Co. v. Flanary & Co., 09 S. IC. 1107, 111
Co. 7'. Meadors & Co. (Tex. Civ. App.), Va. 816.

129 vS. W. 170; Kemendo v. Fruit Dis- 14. Recovery over against other car-
patch Co. (Tex. Civ. App.), 131 S. W. rier. — Kemendo v. Fruit Dispatch Co.
73; Missouri, etc., R. Co. v. Carpenter, (Tex. Civ. App.), 131 S. W. 73. See Mis-
52 Tex. Civ. App. 585, 114 S. W. 900; souri, etc., R. Co. v. Carpenter, 52 Tex.
Galveston, etc., R. Co. v. Piper Co., 52 Civ. App. 585, 114 S. W. 900; Galveston,
Tex. Civ. App. 568, 115 S. W. 107; In- etc., R. Co. v. Piper Co., 52 Tex. Civ.
ternational, etc., R. Co. v. Wilbourne App. 568, 115 S. W. 107; International,
(Tex. Civ. App.), 115 S. W. 111. etc., R. Co. v. Wilbourne (Tex. Civ. App.),

13. International, etc., R. Co. v. Wil- 115 S. W. 111.

bourne (Tex. Civ. App.), 115 S. W. 111. 15. Carlton Produce Co. v. Velasco,

The Carmack amendment to the Inter- etc., R. Co. (Tex. Civ. App.), 131 vS. W.

state Commerce Act (Act June 29, 1906, 1187.

c. 3591, 34 Stat. 593 [U. S. Comp. St. 16. Carlton Produce Co. v. Velasco,

Supp. 1909, p. 11671), making the initial etc., R. Co. (Tex. Civ. App.), 131 S. W.

carrier of an interstate shijjment liable 1187.



§§ 4057-4058



CARRIERS.



3664



damages, and the receiving carrier can not complain of a division of the damages
as the interstate commerce act makes any common carrier receiving property for
transportation from a point in one state to a point in another state Hable for any
damage to such property caused by it or any other common carrier to which the
property is deHvered." Where the damage from delay in transportation is loss
of a market, and not deterioration in the goods shipped, it is error to charge that,,
if a verdict is found against any of the connecting carriers, the damages should
be apportioned among them according to the degree of negligence of which ei-
ther was guilty.^^

§§ 4058-4149. Rates and Charges— § 4058. In General.— The Inter-
state Commerce Act provides that all charges made for services rendered or to be
rendered in the transportation of passengers or property, or in connection there-
with, or for the receiving, delivering, storing, or handling of such property, shall
be reasonable and just, and every unjust and unreasonable charge for such serv-
ice is prohibited and declared to be unlawful, i'^ whether it be because too high
or too low.-"

Power of Congress. — Congress, in the exercise of its power over commerce,
could enact the provisions of which rendered unenforceable a prior contract, valid
when made, by which an interstate carrier agreed to issue annual passes for life
in consideration of a release of a claim for damages. -^ There is no vested
right in the shipper or in the carrier to have an agreement . for free or reduced
transportation or for rebates consummated by the payment of the rebate arranged
for, or the performance of the stipulated service at the free or reduced rate. In
other words, the power of congress to regulate commerce is not hampered by any



17. St. Louis, etc., R. Co. v. Fenley
(Tex. Civ. App.), 118 S. W. 845.

18. Missouri, etc., R. Co. v. Carpenter,
52 Tex. Civ. App. 585, 114 S. W. 900.

19. Rates and charges. — Interstate Com-
merce Comm. V. Brimson, 154 U. S. 447,
38 L. Ed. 1047, 12 S. Ct. 1125; Interstate
Commerce Comm. v. Bahimore, etc., R.
Co., 145 U. S. 263, 36 L. Ed. 699, 12 S.
Ct. 844; Texas, etc., R. Co. v. Interstate
Commerce Comm., 162 U. S. 197, 40 L.
Ed. 940, 16 S. Ct. 666; Covington, etc..
Road Co. V. Sandford, 164 U. S. 578, 41
L. Ed. 560, 17 S. Ct. 198; Interstate Com-
merce Comm. V. Cincinnati, etc., R. Co.,
167 U. S. 479, 42 L. Ed. 243, 17 S. Ct.
896; Savannah, etc., R. Co. v. Florida
Fruit Exch., 167 U. S. 512. 42 L. Ed. 257,
17 S. Ct. 998; Interstate Commerce Comm.
V. Alabama Mid. R. Co., 168 U. S. 144,
42 L. Ed. 414, 18 S. Ct. 45; Louisville,
etc., R. Co. V. Behlmer, 175 U. S. 648,
44 L. Ed. 309, 20 S. Ct. 209; Texas, etc.,
R. Co. V. Abilene Cotton Oil Co., 204 U.
S. 426, 51 L. Ed. 553, 27 S. Ct. 350, 9
Am. & Eng. Ann. Cas. 1075; Cutting v.
Florida R., etc., Co., 30 Fed. 663.

20. Either too high or too low. — In-
terstate Commerce Comm. v. Cincinnati,
etc., R. Co., 167 U. S. 479, 42 L. Ed. 243,
17 8. Ct. 896.

21. Power of congress. — The constitu-
tional liberty of the citizen to make con-
tracts was not infringed by the enactment
by congress, in the exercise of its power
over commerce, of the provisions of Act
June 29, 1906, c. 3591, § 6, 34 Stat. 592



(U. S. Comp. St. Supp. 1909, p. 1163),.
which rendered unenforceable a prior
contract, valid when made, by which an
interstate carrier agreed to issue annual
passes for life in consideration of a re-
lease of a claim for damages. Louis-
ville, etc., R. Co. V. Mottley, 219 U. S.
467, 55 L. Ed. 297, 31 S. Ct. 265, 34 L.
R. A., N. S., 671, reversing decree, 118
S. W. 982, 133 Ky. 652.

The agreement between the railroad
company and the Mottleys must neces-
sarily be regarded as having been made-
subject to the possibility that, at some
future time, congress might so exert its
whole constitutional power in regulating
interstate commerce as to render that
agreement unenforceable, or to impair its
value. That the exercise of such power
may be hampered or restricted to any ex-
tent by contracts previously made be-
tween individuals or corporations is in-
conceivable. The framers of the consti-
tution never intended any such state of
things to exist. Louisville, etc., R. Co.
V. Mottley, 219 U. S. 467, 55 L. Ed. 297,
31 S. Ct. 265, 34 L. R. A., N. S., 671.

Contracts for rebates. — And this is true,,
with respect to contracts for rebates,
even though the property was trans-
ported before the act went into effect.
The fact that the contract has been car-
ried out to that extent confers no vested
right upon the shipper to have it com-
pleted by the payment of the rebate
agreed upon. New York, etc., R. Co. v.
United States,' 212 U. S. 500, 53 L. Ed.
624, 29 S. Ct. 309.



3665 INTERSTATE COMMERCE ACT. §§ 4058-4059

obligation to preserve existing agreements intact or to deprive the parties thereto-
of the right to carry the same into execution only upon the payment of compen-
sation for the rights thus injured or destroyed, but all such contracts must be
considered as having been entered into subject to the power of congress at some
future time to render the same illegal and impossible of performance through the
enactment of statutes in the exercise of its power to regulate commerce. Were
it otherwise, the extent to which the power of congress could be restricted would
be measured only by the skill and foresight which designing parties could bring to
bear in framing their agreements.^-

Compliance with Statute. — The very terms of the statute, that charges must
be reasonable, that discrimination must not be unjust, and that preference or"
advantage to any particular person, firm, corporation or locality must not be
undue or unreasonable, necessarily imply that strict uniformity is not to be en-
forced. -^

Estoppel to Collect Rate. — A railroad can not estop itself from right to<
collect the rate for carriage which, by the Interstate Commerce Act, it is required
to charge. ^^ As the published rates prevail over those agreed upon by the par-
ties, the carrier is not estopped to collect the full amount prescribed by the rates
published under the statute where such amount is in excess of that which the
carrier by contract with the- shipper has agreed to accept for a given ship-
ment.-^

Common Law Does Not Apply. — In an action for damages for charging un-
reasonable rates for transportation from one state to another, shipments made
before the adoption of the interstate commerce act are governed by the common
law, and those made after the adoption of that act by the common law as modi-
fied by the act.-*^ The common-law rule forbidding common carriers from exact-
ing unreasonable charges does not apply to interstate commerce, though the con-
tract of carriage is made in a state where that rule prevails, since such commerce
is governed solely by the laws of the United States, and the United States have
never adopted the common law.^"^

Anti-Trust Act Does Not Apply. — The Sherman anti-trust law ^s does not
give any right of action for damages sustained by the payment of excessive,
unjust, or unreasonable rates to interstate carriers, such relief being provided
for by the Interstate Commerce Act.^^

§ 4059. Just and Reasonable. — The act requires that all charges made for
transportation shall be reasonable. ^'^ When relief by way of damages is sought
under the provisions of the interstate commerce act, upon the averment that a
shipper has been charged an unreasonable rate for goods transported by a rail-
way company, the plaintiff, in order to be entitled to recover, must show that
the rate charged is unreasonable according to the provisions of that act.^^

22. New York, etc., R. Co. v. United 27. Swift v. Philadelphia, etc., R. Co.,
vStates, 212 U. S. 500, 53 L. Ed. 624, 29 58 Fed. 858.

S. Ct. 309; Armour Packing Co. v. United 28. Anti-Trust Act does not apply. —

States, 209 U. S. 56, 52 L. Ed. 681, 28 (Act Cong. July 2, 1890, c. 647, § 7, 26

S. Ct. 428; Louisville, etc., R. Co. v. Mot- Stat. 21D [U. S. Comp. St. 1901, p. 3202]).
tley, 219 U. S. 467, 55 L. Ed. 297, 31 S. 29. Meeker v. Lehigh Valley R. Co.,

Ct. 205, 34 L. R. A., N. S., 671, revers- 162 Fed. 354.
ing l.'JH Ky. 652, 118 S. W. 982. 30. Just and reasonable. — Atchison, etc.,

23. Compliance with statute.— Texas, R. Co. v. United States, 203 Fed. 56.
etc., R. Co. V. Interstate Commerce Interstate Commerce Act Feb. 4, 1887,
Comm., 162 U. S. 197, 40 L. Ed. 940, 10 c. 104, § 1, 24 Stat. 379 [U. S. Comp.
S. Ct. 606. St. 1901, p. 3154], requires that all charges

24. Estoppel to collect rate. — Louisiana made for the transportation of property
R., etc., Co. V. Holly, 127 La. 615, 53 So. shall be reasonable. Interstate Com-
882. merce Comm. v. Chicago, etc., R. Co.,

25. Cocur D'Alcne, etc., R. Co. v. Un- 141 Fed. 1003, affirmed in 28 S. Ct. 493,
ion Pac. R. Co., 49 Wash. 244, 95 Pac. 71. 209 U. S. 108, 52 L. Ed. 705.

26. Common law does not apply. — Mur- 31. Van Patten v. Chicago, etc., R. Co.,
ray v. Chicago, etc., R. Co., 62 Fed. 24. 81 Fed. 545.



§ 4059 CARRIERS. 3666

Re-Enactment of Common Law. — The interstate commerce act which pro-
hibits carriers from the imposition of unjust or unreasonable rates, is an express
adoption by the national legislature of the principle of the common law on this
topics-
Opposite Directions between Same Points. — It has often been recognized
by the commission that the mere fact that a rate is higher one way between the
same points than it is the other does not prove that the higher rate is unreason-
able. ■''^ And this is particularly true where there is a preponderance of empty
cars moving in the one direction, of where there is here some suggestion. There
is also some evidence that the rates westward from Mobile to New Orleans
are lower than they should be, all of which goes to show that there is practically
nothing to be made out of this contention.-'^

Competition. — Rates to a noncompetitive point can not be held unjust and
unreasonable in themselves, and therefore unlawful, under the first section of
the act, where they are made up of the rates charged to the nearest competitive
point through which the shipments pass, which are low rates, forced by severe
competition, combined with the local rates fixed by the state railroad commission
between such point and the point of destination, thus giving the noncompetitive
point the full benefit of whatever reduction in rates competition has effected on
the line of the shipment, and where the total rates so charged are relatively just,
as compared with those to other points in the state, on other lines of road, and
similarly situated.-''^

Charge for Reconsignment. — An additional charge by a carrier of two
cents per hundredweight for the privilege of reconsigning hay at East St. Louis,
originating in northwestern territory and shipped into southeastern territory, is
excessive, within § 1 of the Act of Feb. 4, 1887, prohibiting excessive rates, and
thereby produced an unjust discrimination, in violation of §§ 2 and 3 of the
act.2 6

Charge for Icing. — An icing charge made by a carrier in transporting inter-
state commerce is not prima facie unreasonable solely because it exceeds the ac-
tual cost of the ice alone ; the carrier being entitled to charge a reasonable profit
on the service. ^''^

Terminal Charges. — A separate and fixed terminal charge of two dollars
per car on live stock consigned to or from Chicago, made by the railroads enter-
ing that city, in addition to the charge for transportation over their own lines,
to cover the cost of transferring such cars from their lines to the Union Stock
Yards, which constitute the live stock market of the city, over the tracks owned
by the stock yards company, and which is shown to be approximately the average
cost of such service, when adopted and published as a part of their rates in ac-
cordance with the requirements of the interstate commerce law, does not render

32. Re-enactment of common law. — ment, St. Louis, etc., Grain Co. v. South-
Tift v. Southern R. Co., 123 Fed. 789. ern R. Co., 149 Fed. 609, affirmed in 82

33. Opposite directions between same C. C. A. 614, 153 Fed. 728.

points.— Louisville, etc., Railroad v. In- 37. Charge for icmg.— Geraty v. Atlan-

terstate Commerce Comm., 195 Fed. 541; tic, etc., R. Co., 211 Fed. 227.

Duncan v. Atch., Topeka & Santa Fe, 6 An order of the mterstate commerce

Interst. Com. Comm. R. 85, 103; Mc- commission fixing a charge of $7.50 per

Loon V. Boston & Maine R. R., 9 Interst. car for services rendered in shipments of

Com. Comm. R. 642; Weil v. Pennsylva- citrus fruits from California to the East,

nia R. R., 11 Interst. Com. Comm. R. 027. which, being pre-cooled. required no re-

„, T • •,, . Tj -I J T i icing, will not be disturbed on the ground

34. Louisville, etc., Railroad v. Inter- ,, °' , • ■ a t^ x ^,.i
, . n n inrTTJcji that the carriers were required to haul

state Commerce Comm., 195 Fed. 541. ^, . -^i ^ ki ™ ^-

' the ice without reasonable compensation,

35. Competition.— Interstate Commerce where the revenue from the car is greater
Comm. V. Western, etc., R. Co., 35 C. C. than that derived from a car of standard
A. 217, 93 Fed. 83; Interstate Commerce refrigeration, without corresponding in-
Comm. V. Nashville, etc., R. Co., 57 C. crease in cost. Atchison, etc., R. Co. v.
C. A. 224, 120 Fed. 934. United States, 232 U. S. 199, 34 S. Ct.

36. Charge for reconsignment. — Judg- 291.



3667



interstate; commerce act.



§§ 4059-4060



such rates unreasonable and unjust, although the roads themselves furnish no
terminal facilities at Chicago for handling stock, and the Union Stock Yards
were originally established, and have ever since been used, as the general depot
for live stock by all the roads. ^^

A combination rate made by adding to a competitive through rate charged
between a point of shipment and a basing point a noncompetitive local rate



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 106 of 214)