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§ 221. Liability of Connecting Carriers. The statutes discussed in the next two preceding sections do not affect the liability of other than the initial and delivering carriers. Intermediate carriers are left with the same obligations for loss or damage to shipments as existed before such statutes were enacted. Each carrier other than the initial or delivering carrier is liable for its own negligence.268 As the shipper rarely is able to prove what particular carrier caused the loss or injury, and as the intermediate carrier on a through route is obligated only to carry safely over its own line and safely to deliver to the next connecting carrier, it is generally advisable to sue either the initial or the delivering carrier.269

§ 222. Penalties for Failure to Pay Claims.-A law of South Carolina provided that should a carrier fail, within a time therein stated, to pay a claim for loss or damage, such carrier would be subject to a penalty of fifty dollars. The law applied both to intrastate and interstate commerce, the time to settle being forty days in the former and ninety days in the latter. In a case in the Supreme Court of the United States involving an intrastate shipment where judgment had been entered for fifty dollars penalty and one dollar and seventy-five cents damages, the law was sustained.270 Mr. Justice Brewer, delivering the opinion, said:

"Further, the matter to be adjusted is one peculiarly within

seq., and amendments of July 3, 1926, c. 761, 44 Stat. 835, and of March 4, 1927, c. 510, Sec. 3, 44 Stat. 1448.

268 Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190, 60 L. Ed. 948, 36 Sup. Ct. 541, affirming 15 Ga. App. 142, 82 S. E. 784; Cincinnati, etc., Ry. Co. v. Rankin, 241 U. S. 319, 60 L. Ed. 1022, 36 Sup. Ct. 555. See also U. S. C. A., Title 49, Sec. 20, par. (11), Notes 161, 162, 163, pp. 129,

130, 131.

269 Oregon-Washington R. & Nav. Co. v. McGinn, 258 U. S. 409, 66 L. Ed. 689, 42 Sup. Ct. 332, reversing 265 Fed. 81.

270 Seaboard A. L. Ry. Co. V. Seegers, 207 U. S. 73, 52 L. Ed. 108,

28 Sup. Ct. 28. Same case below, 73 S. C. 71, 52 S. E. 797. See also Best v. Seaboard A. L. Ry. Co., 72 S. C. 479, 52 S. E. 223; Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 57 L. Ed. 193, 33 Sup. Ct. 40; So. Ry. Co. v. Love, 139 Ga. 362, 77 S. E. 44; Kansas C. S. Ry. Co. v. Anderson, 233 U. S. 825. 58 L. Ed. 993, 34 Sup. Ct. 599, affirming same-styled case, 104 Ark. 500, 148 S. W. 58; Missouri K. & T. R. Co. v. Cade, 233 U. S. 642, 58 L. Ed. 113, 34 Sup. Ct. 678, following Missouri K. & T. R. Co. v. Mahaffey, 105 Tex. 394, 150 S. W. 881, and explaining Gulf C. & S. F. R. Co. v. Dennis, 224 U. S. 503, 56 L. Ed. 860, 32 Sup Ct. 542.

the knowledge of the carrier. It receives the goods and has them in its custody until the carriage is completed. It knows what injury was done during the shipment, and how it was done. The consignee may not know what was in fact delivered at the time of the shipment, and the shipper may not know what was delivered to the consignee at the close of the transportation. The carrier can determine the amount of the loss more accurately and promptly and with less delay and expense than any one else, and for the adjustment of loss or damage to shipments within the state forty days cannot be said to be an unreasonably short length of time."

The same statute was held valid when applied to an interstate shipment. The Supreme Court of South Carolina, discussing the statute thus sought to be applied, said:271

"The penalty imposed is for a delict of duty appertaining to the business of a common carrier, and in so far as it may affect interstate commerce, it is an aid thereto by its tendency to promote safe and prompt delivery of goods, or its legal equivalent-prompt settlement of proper claim for damages. No penalty can attach except upon the establishment in a court of a default of duty imposed by statute."

The Supreme Court of the United States quoted the language just copied in the opinion holding that the state statute was valid.

Such statutes, when unreasonable, are void, whether affecting interstate commerce or not, and so held of an Arkansas statute providing for heavy penalties when the shipper recovered the amount for which he sued, although prior to his suit he had demanded a larger amount.272

271 Atlantic C. L. R. Co. v. Mazursky, 216 U. S. 122, 132, 54 L. Ed. 411, 30 Sup. Ct. 378, affirming same-styled case, 78 S. C. 36, 58 S. E. 927, 125 Am. St. Rep. 762. See discussion and cases cited Dickinson v. Stile, 246 U. S. 631, 62 L. Ed. 908, 911, 38 Sup. Ct.

415.

272 St. Louis, I. M. & S. Ry. Co. v. Wynne, 224 U. S. 354, 56 L. Ed.

799, 32 Sup. Ct. 493. Followed in Chicago M. St. P. Ry. Co. v. Polt, 232 U. S. 165, 58 L. Ed. 554, 34 Sup. Ct. 301, reversing same-styled case, 26 S. D. 378, 128 N. W. 472; Chicago M. & St. P. Ry. Co. v. Kennedy, 232 U. S. 626, 58 L. Ed. 762, 34 Sup. Ct. 463, reversing same-styled case, 28 S. D. 94, 132 N. W. 802; Missouri K. & T. R. Co. v. Tucker, 230 U. S. 340, 57 L.

In a case involving the validity of a Texas statute providing for attorneys' fees where judgments were rendered for loss of, or damage to, freight, it was urged that such statute affected interstate commerce, and was void because of conflict with the Carmack Amendment. This contention the Supreme Court met by saying: "But the Texas statute now under consideration does not in any way either enlarge or limit the responsibility of the carrier for the loss of property intrusted to it in transportation, and only indirectly affects the remedy for enforcing that responsibility. 11273

Congress has dealt with the contract in the Carmack Amendment. These penalty statutes, as stated by the Supreme Court, do not affect the contract, but refer to the remedy for a breach thereof.274

This distinction must not be overlooked. In the Texas case, supra, the loss for which suit was brought occurred on the line of the delivering carrier, and other than this presumption there was no evidence to show which of the carriers transporting the commodity caused the damage thereto. The Carmack Amendment gives a right of action against the initial carrier. So, a later South Carolina judgment was reversed, not because of the provision for the recovery of an attorney's fees, but because the right to recover both damages and attorney's fees was based upon a statute in conflict with the federal law. With this distinction in mind, the later South Carolina case is in harmony with the decision in the Texas case. In the South Carolina case, the Texas case and other cases are cited and the applicable principle stated as follows:275 "When, Congress has taken the particular subjectmatter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go."

Ed. 1507, 33 Sup. Ct. 961, reversing
Tucker v. Mo. Kan. & Tex. R. Co., 82
Kan. 222, 108 Pac. 89.

273 Missouri K. & T. R. Co. v. Harris, 234 U. S. 412, 58 L. Ed. 1377, 34 Sup. Ct. 790. See cases cited affecting the question arising under

state legislation and question arising
under the Carmack Amendment.
274 Sec. 33, ante.

275 Charleston & W. C. Ry. Co. v. Varnville Furniture Co., 237 U. S. 597, 59 L. Ed. 1137, 35 Sup. Ct. 715.

§ 223. What is Full Value?—The general rule, adequately supported by authorities, a few of which are cited in Note 276, is, that the measure of damages for loss of goods is (1) the market value at the time and place of delivery and (2) the difference between the value of the goods as damaged and the market value of the undamaged goods at such time and place. The leading authority is the McCaull-Dinsmore Case,276 where the general rule stated above was applied, but railway claim agents have not always been willing to follow that rule. Some of the practical questions that have arisen will, therefore, be stated in the following sections for the purpose of showing the application of the rule.

§ 224. Market Value at Destination and How Determined. -There is no general formula or rule to apply for determining market value. Many facts may be helpful in determining what is the market value. For instance, proof of other sales of similar goods made at or about the time the shipment should have arrived at destination, market quotations from reliable trade journals, prices at which other goods of the same quality may be purchased, and prices at which the same quality of goods are being sold in nearby markets. Some courts hold that invoice price is admissible as evidence although not conclusive of market value.

Market value is a relative term depending upon the supply of the particular goods available and the current demand therefor. What the market value of any article is at a given

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276 McCaull Dinsmore Co. Chicago, M. & St. P. Ry. Co. (D. C. Minn. 1918), 252 F. 664, affirmed (1919), 260 F. 835, 171 C. C. A. 561, affirmed (1920), 253 U. S. 97, 64 L. Ed. 801, 40 Sup. Ct. 504. See also Crail v. Illinois Cent. R. Co. (D. C. Minn. 1926), 13 F. (2d) 459; Crail v. Illinois Cent. R. Co. (D. C. Minn. 1927), 21 F. (2d) 836, 31 F. (2d) 111, 280 U. S. 57, 74 L. Ed. 247, 50 Sup. Ct. 180; Sou. Ry. Co. v. Northwestern Fruit Exch. (1923), 98 So. 382, 210 Ala. 519; St. Louis & S. F. Ry. Co. v. Georgia F. & A. Ry. Co. (1925),

104 So. 33, 213 Ala. 108; Zimmern v. Sou. Ry. Co. (1922), 92 So. 437, 207 Ala. 169; Brown Coal Co. v. Illinois Cent. R. Co. (1923), 192 N. W. 920, 196 Iowa 562; Keota Produce Co. v. Chicago R. I. & P. R. Co. (Iowa 1920), 179 N. W. 834, 189 Iowa 1284; Woonsocket Machine, etc., Co. v. New York, N. H. & H. R. Co. (1921), 131 N. E. 461, 239 Mass. 211; Kilthau v. International Mercantile Marine Co. (1926), 215 N. Y. S. 718, 217 App. Div. 22; Norfolk & W. Ry. Co. v. Nottingham & Wrenn (1924), 124 S. E. 398, 139 Va. 748.

place at a stated time is a question of fact for a jury and one to be decided upon all the facts and evidence which can be presented bearing upon the point. Courts are liberal in admitting in evidence any facts which might be helpful in determining what the market value was at a given time.

§ 225. Claims for Decline in Market Price. Claims for unreasonable delay in transit should be based upon the difference between the market value of the shipments at the time they should have arrived at destination and their value at the time they actually did arrive. Section 2773 of the Georgia Code, applicable to intrastate shipments, provides:

"Where a carrier fails to deliver goods in a reasonable time, the measure of damages is the difference between the market value at the time and place they should have been delivered, and the time of actual delivery."

Similar statutes exist in other states, and the rule is little or no more than a statement of the common-law rule.

§ 226. Amount of Recovery May Be Limited by Agreement Under Certain Conditions.-Less than full actual value may be agreed upon as the measure of recovery when, with the approval of the Interstate Commerce Commission, there are offered to shippers two rates, one based upon a fixed value and the other upon actual value. The Interstate Commerce Act provides:277

"That the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first to baggage carried on passenger trains or boats, or trains or boats carrying passengers; second, to property, except ordinary live-stock, received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing

277 39 Stat. 441; Title 49 U. S. C. A., Sec. 20.

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