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without a jury, and said justice rendered a , lected by said Earl & Prew Express Compadecision for the plaintiff for $50 upon each ny from the consignee. The electric express shipment, in all for the sum of $150. The company would then deliver said goods to the case is before us upon the plaintiff's excep- Earl & Prew Express Company and receive tions to certain rulings of said justice upon its bill of lading for the same, stating that the admission of evidence and upon its ex- the goods were received for shipment from ception to said decision. It appeared in testi- the Rhode Island Company. The three shipmony before said justice that the plaintiff's ments now in question were delivered to the business required it to make frequent ship- defendant, the Rhode Island Company, in ments of goods; that from 1901 to 1907 it this manner; and the undisputed testimony had carried such goods by its own wagons is that the Rhode Island Company safely defrom its works to the depot of the Earl & livered said three shipments to the Earl & Prew Express Company in Providence, a dis- Prew Express Company; but the goods were tance of about four miles, had there deliver- never delivered to the consignees. ed said goods to the express company for Save as to the names of the consignees and shipment, and had received therefor the bills the descriptions of the goods, the three bills of lading of the express company. Early in of lading, filled out by the plaintiff and sign1907 the Interstate Express Company estab-ed by the car conductor of the Rhode Island lished a line of electric express cars, operat- Company, when said three shipments were ed by overhead trolley, between Providence delivered by the plaintiff to the Rhode Isand Phillipsdale; this business later passed land Company, were in the same forms, and into the hands of the Rhode Island Company. each was as follows: From the beginning of said electric express "Original. Providence, R. I. 8/6, 1908. service until the time of the shipments in "Received from Glenlyon Dye Works, by the question, the plaintiff sent its goods to Provi

Interstate Express Company, dence by said electric express, which deliv

"The property described below, in apparent ered said goods in Providence to the Earl & good order except as noted (contents and condi

tions of contents of packages unknown), mark· Prew Express Company. From January, ed, consigned and destined as indicated below, 1907, until August, 1908, apparently with the which said company agrees to carry to the said acquiescence of the Earl & Prew Express destination, if on its road, otherwise to deliver Company if not by its direction, the plaintiff to another carrier on the route to said destinafilled out the blank receipts or bills of lading "It is mutually agreed in consideration of the of the Earl & Prew Express Company for its rate of freight hereinafter named, as to each goods, forwarded in this manner to said com- carrier of all or any of said property over all or

any portion of said route to destination, and as pany. These bills of lading were signed by to each party at any time interested in all or the electric express car conductors for the any of said property that every service to be Earl & Prew Express Company, and were re- performed hereunder shall be subject to all the

conditions, whether printed or written, herein tained by the plaintiff. About August 1, contained, and which are hereby agreed to by 1908, the Earl & Prew Express Company re- the shipper and by him accepted for himself fused to permit the electric car conductors and his assigns as just and reasonable. any longer to sign its receipts, and directed the steamship company receiving this shipment

"The conditions of the regular bill of lading of its servants to receive the shipments of the are hereby made a portion of this contract and plaintiff from the electric express and to de- are binding the same as if expressed herein. liver to the electric express car conductors

Consignee: Vietor & Archelis, Dept. P. K. a receipt or bill of lading which should state Destination: New York City, 'N. Y. that said shipments were received from the

Weight Rhode Island Company, thus ending any Description of Articles. Subject to Correction. course of dealing by which it might appear 1 Case No. 1873 that the electric express company was acting

Paid as the agent of the Earl & Prew Express Via E. & P. Ex. Company. After August 1, 1908, the plain

"The conditions upon which the above-mentiff, if it desired to ship goods through the tioned property is received for transportation Earl & Prew Express Company, would fill are printed on the back hereof. out a blank receipt or bill of lading, furnish

"The Interstate Express Company,

"Per [Signed] Hourd." ed by the Rhode Island Company, and on the delivery of said goods to the electric express

The only condition printed upon the back car conductor would obtain his signature to of said receipt, which appears to us to be said bill of lading, which bill was retained material, is the following: by the plaintiff. In said bill the plaintiff

"(3) No carrier shall be liable for loss or damwould write “Via E. & P. Ex.,” which indi- age not occurring on its own road or its portion

of the through route, nor after said property is cated that said goods were to be shipped to ready for delivery to the next carrier or to contheir destination through the Earl & Prew signee. The amount of any loss or damage for Express Company. The plaintiff would al- which any carrier becomes liable shall be com

puted at the value of the property at the place so indicate by the word “Paid” written in and time of shipment under the bill of lading, said bill that the charges of the Earl & Prew unless a lower value has been agreed upon or is Express Company were to be prepaid by the determined by the classification upon which the electric express company, or by the word rate is based, in either of which events such low

er value shall be maximum price to govern such “Collect” that said charges were to be col computation.”

[1] The first question which arises in the which section is known as the Carmack consideration of the case is whether, in view Amendment, it was responsible for any loss of the course of dealing between the parties, or damage to said goods caused by it or any and especially by reason of the terms of the carrier to which said goods were delivered condition quoted above, the defendant, the in transit, notwithstanding the condition Rhode Island Company, is liable in any printed upon the back of the defendant's amount. The defendant, and by that term, bills of lading, by which it sought to restrict hereafter in this opinion, we shall refer to its liability to any loss or damage occurring the Rhode Island Company, claims that it on its own road. Said Carmack Amendment was acting simply as the teamer of the plain-(34 St. at Large, 584) provides as follows: tiff, taking the place of the plaintiff's own “That any common carrier, railroad, or transwagons, in carrying the plaintiff's goods from portation company receiving property for transPhillipsdale to Providence and delivering the portation from a point in one state to a point in

another state shall issue a receipt or bill of ladsame to the Earl & Prew Express Company; ing therefor and shall be liable to the lawful that it performed this service safely and was holder thereof for any loss, damage, or injury to under no further liability; also that no loss such property caused by it or by any common

carrier, railroad, or transportation company to or damage to said goods occurred on the which such property may be delivered or over road of the Rhode Island Company, and whose line or lines such property may pass, and hence it is not liable in accordance with the no contract, receipt, rule, or regulation shall excondition printed on the back of its bills of empt such common carrier, railroad, or trans

portation company from the liability hereby imlading accepted by the plaintiff. In support posed.” of this the defendant calls attention to the

The question then arises, under the contestimony showing the manner in which its flicting claims of the parties, whether, in the charges and the charges of the Earl & Prew circumstances of this case, the defendant is Company were paid by the plaintiff. The de- liable for the full value of the goods lost or fendant fixed no through rate from Phillips- in a less amount. The plaintiff claims that dale to New York, and it did not render to under the Carmack Amendment and the the plaintiff a bill for through charges. The terms of the defendant's bills of lading, esdefendant did have an agreement with the pecially the terms of condition 3 printed on plaintiff for a rate from Phillipsdale to Prov- the back, it is entitled to recover the full idence of six cents per hundred pounds, ir- value of said goods at the place and time of respective of the character of the goods or shipment. their value. This charge of the defendant [2] It appeared in evidence that the rates was paid by the plaintiff upon weekly bills of the Earl & Prew Express Company berendered to the plaintiff on all goods carried tween Providence and New York were estaband delivered to the Earl & Prew Company, lished, duly filed with the Interstate Comwhether the charges of the Earl & Prew merce Commission, and approved by it, and Company were prepaid or that company was duly published and posted as required by to collect its charges from the consignee. the Interstate Commerce Law. Those schedWhen the charges of the Earl & Prew Com-ules stated that the rate was based upon a pany were to be prepaid, the defendant ad-value of not exceeding $50 per shipment, and vanced the amount of these charges, and, in that no further liability is assumed by the its bill rendered to the plaintiff, placed said company unless the shipper declares, at the amount as a separate item under the head time of shipment, a higher value. If a value of "Advances."

of more than $50 upon the goods is declared These and other circumstances in the deal- by the shipper, a higher rate is charged and ings between the plaintiff and the defendant greater precautions against loss are taken would lead to the conclusion that the defend-by the Earl & Prew Company. In the deant was acting merely as the agent of the fendant's bills of lading, which were filled plaintiff in carrying the plaintiff's goods to out by the plaintiff, no rate is named, and no the Earl & Prew Company, and that, when it value of the goods shipped is declared, but had performed such service, its liability was the defendant is directed to ship the goods to at an end. The defendant, however, by its destination through the Earl & Prew Express bills of lading, in the three shipments now Company. under consideration, has fixed its status in The plaintiff claims that, notwithstanding those transactions as an interstate carrier, the direction in the bills of lading, the and hence it is subject to all the restrictive defendant was not obliged to forward the provisions prescribed by Congress in the In- goods through the Earl & Prew Express Comterstate Commerce Act and its amendments. pany; that, by a specific condition in its bills It has undertaken to carry said goods from of lading, it might have limited its liability Phillipsdale to their destination in New in accordance with the limitations contained York City, and by that fact, in accordance in the rates of the Earl & Prew Company, or with the universally accepted rule, it was it might have forwarded the goods through engaged in commerce between the states and some other carrier which did not differentiate was subject to the legislation of Congress. its rates in accordance with the classification It became what is known as the initial car- based on values, as was done by the Earl & rier, and according to the provisions of sec- Prew Company. The plaintiff has cited a tion 20 of the Interstate Commerce Act, number of cases which it claims supports

this contention. Those cases appear to us, fixed under the law. To hold differently would to hold merely that a carrier is not obliged to be subversive of good policy, and it would tend

to nullify the law." undertake to transport goods beyond its own

In Louisville & Nashville R. R. Co. v. lines; that it is at liberty to do so upon such terms, as to routes, as it may fix or agree Dickerson, 191 Fed. 705, 709, 112 C. C. A. upon. The defendant has called to our atten- 295, 299, the court said: tion a large number of decisions of the In

"A rate once regularly published is no longer terstate Commerce Commission to the effect merely the rate imposed by the carrier, but be

comes the rate imposed by law; and routes and that, if an initial carrier undertakes to rates once so established become matter of pubforward goods beyond its own lines, it is lic right and forbid private contract inconsistent obliged by law to follow the shipper's direc- therewith. It results that, under the commerce

act, a stipulation in a bill of lading for a rate tions as to routes, if any are given. In this greater or less than the published tariff is void.” case, moreover, it was a part of the defend

It also appeared in testimony that the ant's undertaking to forward the goods to plaintiff had dealt with the Earl & Prew Extheir destination through the Earl & Prew press Company for years, had actual knowlCompany, and by no other carrier. The

edge of the rates of that company, and knew plaintiff cannot be heard to urge that the that there were two rates, each based upon rates of the Carl & Prew Company have no the valuation of the merchandise declared bearing on che case because the defendant by the shipper. The manager of the plaintiff might have disregarded its contract and sent corporation testified as follows: the goods forward through some other car

12 Q. "In any event, you were aware, were rier.

you not, Mr. Blanchard, that the charges were The defendant had no through rate from higher on goods on which value was declared ?” Phillipsdale to New York City on file with A. "In a general way, yes.” 13 Q. “That there

was a graduated charge?" A. "Yes." the Interstate Commerce Commission and "Based upon value, in force by the Earl &

A. "Yes.” 14 Q. approved by it. It had never quoted to the Prew and Adams Express Company?" A. "I plaintiff a through rate from Phillipsdale to

was.' New York City. Its charge for such serv It was also in testimony and not conice was its own rate of six cents per hun- tradicted that the manager stated that he dred pounds from Phillipsdale to Providence, did not declare value on his shipments bewhich had been agreed upon between the cause it would be too expensive. parties, plus the charges of the Earl & Prew It thus appears that, when the plaintiff deCompany from Providence to New York, livered said three shipments to the defendwhich the defendant had paid under the ant, it directed that its goods should move by name of advances for the plaintiff. The the Earl & Prew Company from Providence, rates of the Earl & Prew Company, however, and by that direction the defendant was were filed with and had been approved by the bound; that the plaintiff knew the rates of Interstate Commerce Commission. To secure the Earl & Prew Company; that those rates equality, rates, when so approved, have been were based upon the value of the goods shipheld to have the force of rates imposed by ped, and that, if no value was declared, the law and cannot be varied. Such a rate be- shipments should be considered as of the comes binding upon all persons, and all value of $50 each, and no further liability shippers are charged with knowledge of it would be assumed by the Earl & Prew Comas constituting the lawful rate.

pany; that the rate which it was to pay to In Gerber v. Wabash R. R. Co., 63 Mo. the defendant for the through services to App. 145, 147, the court said:

New York City was to be the defendant's "Considering the evils which the interstate own rate to Providence, plus the rate of the commerce law was intended to remedy, would it, Earl & Prew Company, which was based upunder any circumstances, be good policy to al on a valuation of $50 on each shipment. forced specifically? We think not. Prior to its can it fairly be held otherwise than that the enactment, the complaint was almost universal plaintiff's position, at least with reference that the common carriers were discriminating into a loss after delivery of said shipments to their rates in favor of favored shippers. To remedy this evil as to interstate shipments, Con- | the Earl & Prew Company, is the same as if gress enacted the law; and it should be con

it had specifically declared a value of $50 strued and enforced so as not in the least to on each shipment, by which declaration, thwart its purpose. Strictly speaking, the pub- made for the purpose of obtaining a lower lished schedules are not a part of the law itself, but are the results of the acts of the carrier and rate, it would be bound? the interstate commerce commissioners in execu In Wells Fargo & Co. v. Neiman-Marcus tion of the law. But every shipper must be pre- Co., 227 U. S. 469, 33 Sup. Ct. 267, 57 L Ed. sumed to know of the existence of the schedules and that they are open for his inspection, 600, the court said: and also of the terms of the act rendering in “But the shipper, in accepting the receipt revalid every contract of affreightment not made citing that the company 'is not to be held liable in accordance . therewith. Therefore, where a beyond the sum of $50, at not exceeding which contract for an interstate shipment has ween sum said property is hereby valued, unless a difmade defendent thereon, the shipper must be ferent value is hereinabove stated,' did declare held to have contracted with reference to and and represent that the value did not exceed that in accordance with the rates fixed by the sched- sum, and did obtain a rate which he is to be asules, regardless of the terms of his contract. In sumed to have known was based upon that as other words, the rates of interstate shipments the actual value. There is no substantial disare not the subject of contract, but are in effect tinction between a value stated upon inquiry,

and one agreed upon or declared voluntarily. | liver them to the Earl & Prew Express ComThe rate of freight was based upon the valua- pany; and that it had no further responsition thus fixed, and the liability should not ex-bility for said goods. The plaintiff claimed ceed the amount so made the rate basis."

that this was an attempt to vary and conIn Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683, | tradict the terms of the written bills of lad227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683, ing, and that such evidence was inadmissible. the court said:

The “But when a shipper delivers a package for The justice admitted it de bene esse. shipment and declares a value, either upon re- plaintiff has not been prejudiced by the adquest or voluntarily, and the carrier makes a mission of such evidence, as the superior rate accordingly, the shipper is estopped upon court held that the defendant was an initial plain principles of justice from recovering, in carrier who undertook the through transcase of loss or damage, any greater amount. * * * The valuation declared or agreed upon portation of said goods and was liable to the as evidenced by the contract of shipment upon plaintiff for loss throughout the transit of which the published tariff rate is applied must

said goods. be conclusive in an action to recover for loss or damage a greater sum. * * To permit such [4] The other evidence, to the admission of a declared valuation to be overthrown by evi- which exceptions were taken, relates to the dence aliunde the contract, for the purpose of course of dealing between the parties showenabling the shipper to obtain a recovery in a suit for loss or damage in excess of the maxi- ing the rates of the defendant for its servmum valuation thus fixed, would both encourage ice to Providence, and for through service. and reward undervaluations and bring about As to this matter, there was no mention in preferences and discriminations forbidden by the law."

the bills of lading, yet a finding with regard Moreover, it appears to us that the parties to it was essential to the determination of by the terms of the bills of lading have pro- the controversy between the parties. This vided as to the amount of loss for which the evidence tended to show that the rates of the defendant should be liable. We refer to a defendant were based partly upon the rate portion of the third condition printed on the of the Earl & Prew Express Company, and back of the bills of lading, and quoted above, also that the plaintiff had a thorough knowlto the effect that in computing the amount edge of the rates of the Earl & Prew Express of loss, if a value lower than the actual value Company with reference to which the par*has been agreed upon or is determined by ties had contracted. This evidence was propthe classification upon which the rate is bas- erly admissible. ed, * such lower value shall be

Although the evidence disclosed no liamaximum price to govern such computation.” bility on the part of the defendant, the In

It must be held that, within the contract terstate Express Company, the decision of of the parties, a part of the defendant's said justice appears to have been rendered rate, to be paid by the plaintiff, was the rate against both defendants. As the Interstate of the Earl & Prew Express Company. That Express Company had taken no exception to latter rate, which was well known to the said decision, we shall not disturb the deplaintiff, was based upon a classification as cision in that regard. to value, and hence a value' lower than the

All of the plaintiff's exceptions are overactual value of the goods had been agreed ruled. The case is remitted to the superior upon and was determined by the classifica- court for the entry of judgment on the detion as to value upon which the rate of the cision. defendant was based. It therefore appears to us as deducible

(37 R. I. 89) from the course of dealings between the par GIBBONS V. RHODE ISLAND CO. ties, from which their contract as to rates

(No. 4717.) must be found, for the bills of lading are

(Supreme Court of Rhode Island. July 10, silent on that subject, and from the specific

1914.) terms of the condition printed on the back

1. WITNESSES (8 388*)-IMPEACHMENT-CONof the bills of lading, that the liability of the

TRADICTORY STATEMENTS IN ANOTHER CASE. defendant for the loss of the goods was limit It was proper, on cross-examination, to ed to $50 on each shipment. The decision of ask a witness whether in a deposition in another said justice in that regard is without error

case he had not made certain statements which unless said decision was based upon evi- the plaintiff claimed were contradictory of his

testimony in the present case. đence improperly admitted.

[Ed. Note.--For other cases, see Witnesses, [3] The plaintiff has included in its bill Cent. Dig. $$ 1233-1242, 1246; Dec. Dig. § a large number of exceptions to the rulings 388.*] of said justice admitting evidence during 2. TRIAL (8 140*) - QUESTIONS FOR JURY — the trial. We find no merit in any of these CREDIBILITY OF WITNESSES. exceptions. The defendant sought to CO

Whether statements of an expert medical duce some of said evidence for the purpose witness contained in a deposition made by him of showing the course of dealings between the timony in the present case held a question for

in another case were inconsistent with his tesparties in support of its contention that it the jury. was simply the agent of the plaintiff to trans [Ed. Note. For other cases, see Trial, Cent. port said goods to Providence, there to de- | Dig. $$ 334, 335; Dec. Dig. § 140.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

3. DAMAGES ($ 168*)-PHYSICAL CONDITION-a justice of the superior court sitting with EVIDENCE-RELEVANCY-SIMILAR FACTS.

a jury. The jury returned a verdict for the Where plaintiff claimed that as the result of her injury she was suffering from hyperthy- | plaintiff in the sum of $27,500. The defendroidism, that an examination of her blood show- ant duly filed its motion for a new trial on ed an abnormal condition, indicating an excess the ground that the damages awarded by of lymphocytes in the blood, and defendant the jury were excessive. Said justice in his claimed that the count of lymphocytes in plaintiff's blood was not in excess of the number ap- decision on said motion held that the amount pearing in the blood count of a normally of said verdict was excessive, and ordered healthy person, the result of certain counts of that a new trial should be granted unless, the blood of defendant's counsel was inadmissible, where there was no showing that he was in within seven days, the plaintiff should remit a normally healthy condition at the time of tak- all of said verdict in excess of $20,000. The ing the sample of which the counts had been plaintiff did not file her remittitur in accordmade.

ance with said decision. The case is before [Ed. Note. For other cases, see. Damages; us upon the plaintiff's exception to the deciCent. Dig. $$ 480, 482–486; Dec. Dig. § 168.*]sion of said justice on the motion for a new 4. DAMAGES ( 132*)- EXCESSIVE DAMAGES- trial and upon the defendant's exceptions to INJURY TO NERVOUS SYSTEM.

A verdict of $27,500 for injury to plaintiff, certain rulings of said justice, upon the ad25 years of age, and who, though previously in mission of evidence, made during the trial, excellent health, was physically incapacitated and to the decision of said justice upon its from the time of the accident to the time of the trial nearly three years later, and was suffering motion for a new trial. from a nervous trouble, and who would never The defendant excepted to the ruling of be completely restored to health, was excessive, said justice permitting the plaintiff, in crosstiff filed a remittitur of the amount in excess examination of a medical witness, who had tiff filed a remittitur of the amount in excess qualified as an expert, to call the attention of $20,000.

[Ed. Note.-For other cases, see Damages, of said witness to certain testimony given Cent. Dig. $$ 372–385, 396; Dec. Dig. § 132.*] by him in another case between different par5. APPEAL AND ERROR (8 1140*) — DISPOSI-ties, which former testimony the plaintiff TION-OPPORTUNITY TO REMIT DAMAGES.

claimed was contradictory of the witness' Under Gen. Laws 1909, c. 298, 12; pro- testimony given in the case at bar. In dividing that a verdict shall not be set aside as excessive until the prevailing party has been rect examination this witness testified in regiven an opportunity to remit so much thereof gard to the condition of the plaintiff : as the court adjudges excessive, the Supreme

“I think she-I am very positively of the Court, on overruling defendant's exceptions and plaintiff's exception to an order for a remission opinion that she has one thing and that is this of damages in excess of $20,000, with which or- testified to, that includes elements of hysteria.”

so-called traumatic neurosis which has been der she had never complied, and on agreeing that $20,000 was a proper verdict, would remit

Later, in cross-examination, the witness to the lower court for a new trial, unless plain- testified as follows: tiff filed a remittitur of the excess over $20,000, in which case the lower court would be di

Q. 44. What do I understand you is the

cause of this condition that you find, Doctor? rected to enter judgment for that amount. A. I understand that the accident was the ex

[Ed. Note.-For other cases, see Appeal and citing cause; that the condition has been proError, Cent. Dig. $$ 4462-4476; Dec. Dig. $ longed largely by litigation. Q. 45. And the 1140.*]

condition is what? A. What is known Exceptions from Superior Court, Provi- traumatic-some call it traumatic neurosis,

some call it litigation neurosis at this stage, dence and Bristol Counties; Chester W. Bar- because after three years the effects of the rows, Judge.

original accident have presumably passed away Action by Flora Gibbons against the Rhode and that of the litigation is the important one,

long-continued study of herself, and so on. It Island Company. Verdict for plaintiff, de- is a mental condition largely." fendant's motion for new trial denied, and

And later, in cross-examination, the witnew trial ordered, unless plaintiff within

ness testified as follows: seven days should remit the verdict in ex

"Q. 52. How long have you been diagnosing cess of $20,000, and plaintiff and defendant neurosis and neurasthenia following an acciexcept. Exceptions overruled, and case re- dent, trauma ? A. Oh, I suppose for-ever mitted for new trial unless plaintiff, on or since the diagnosis originated. Ever since it mitted for new trial unless plaintiff, on or originated. They used to call these cases spibefore July 20, 1914, file a remittitur of the nal concussion long ago. When I was in the verdict in excess of $20,000, with direction medical school they called them all spinal conin case plaintiff filed such remittitur to en-cussion. Then about the time I graduated the

opinion was changing about them, that they ter judgment for that amount.

were—that the spinal cord was not affected in John W. Hogan and Philip S. Knauer, these cases and it was a functional condition, both of Providence, for plaintiff. Joseph C. sis and traumatic hysteria. That was along

and they began to call them traumatic neuroSweeney and Eugene J. Phillips, both of perhaps 1886, or something like that, and I Providence, for defendant.

have studied these cases ever since that time, as well as before. Q. 53. Traumatic neuras

thenia and traumatic neurosis are in the same SWEETLAND, J. This is an action of class ? A. Well, in a way. Traumatic neurotrespass on the case to recover damages for sis includes traumatic neurasthenia. Neurosis personal injuries alleged to have been re

is a general term that includes hypochondria, ceived by the plaintiff through the negligence matic neurosis mean a larger field of injury

hysteria, and neurasthenia. Q. 54. Does trauof the defendant. The case was tried before and symptoms than traumatic neurasthenia ? *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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