EELLS t1; ST. LOUIS, K. &I: N. W. RY. CO.
903
there appears to have always been an errc;meous judgment for a substantial sum. 'P;ti, court ought not to order the costs returned unless it is absolutely compelled to do so by strictlaw, and I think it is not. The 8fl.mereasons apply to the claim for costs of the bill of review. Complainant claims ,that the original Cause should be- erased from the cannot erase the cause from docket. Defendants claim that the docket, because of the mandate of the supreme ,court directing execution for costs, and cite the case of Bridge 00. v. Stewart, p How. 413, in support of this claim. In Iron Co. v, Stone, 121 U. S. 631, 7 Sup. Ct. Rep. 1010, the circuit court had, rendered a decree dismissing the bill on ita merits. ,The supreme cou,rt,on appeal, held that the circuit court had no jurisdiction, and awarded costs in the supreme court. The court, seem to circumstances, so far as regards the case in the have been substantially the same as in the present case, and the judgment ordered in that case fippears to be proper here. The motion for writ of restitution and ·for costs is denied. The decree against of this ,court in the original action brought by this these defendants is reversed, and the bill in that action is dismissed for want of jurisdiction, and without prejudice.
EELLS 1.
t7.
ST. LoUIS, K. & N. W. RY.Co., (KELLY, Intervener.) (otrcuit oourt, S. D. Iowa, E. D.)
CABBIlllRI OJ' FREIGHT VALUATION.
LIABILITY lI'OR NEGLIGENOIll- LIMITATION BY CONTRACT-
I.
SAMIlI-FOLLOWING STATE DECISIONS.
In Equity. Bill by Dan P. Eells, trustee, etc., against the St. Louis, Keokuk & Northwestern Railway Company. Intervening petition by Isaao Kelly against the reoeiver, W. W. Baldwin, torecoverthevalueofahorse alleged to have been killed by the receiver's negligence while in course of transportation. Heard on exceptions to the master's report. Overruled. W. J. Roberts, for intervener. H. H. Trimble and Palmer Trimble, for receiver. WOOLSON, District Judge. Pending the proceedings in the original action, Isaac Kelly, by leave of the court, filed his petition of inter-
,nmERAl. REPORTER,' vol. 52.
W. BaldWin., 8S rooeiver of 't he defengant. railway (lo,Wpany.'Hiscause ,6faetioll is; itt substance, tha:tabollt August 6, 1887, aud while 'said :BaIawin,as receiver, was operrttlng' said' liue of raj!way, the owner of'avaluable thevlilue of $1';500','whfCh intervener delivered to' said receiver for transportation dvet'sBld railWaYi 'and; 'that, while beink so transported, said horse, by negligence of said ret:eiver, was injured s11d damaged inlthe)1:lni, of$l,200., for which intervener demands judgment. An order"oheterence to the mt'tsterwaseritered. Defendant receiver's answer CSd the question' ndw tinder consideratiort)' alleges that said'hoWle'was shippedss8 common horse, and not as a valuable horse, alid at 1ti1'e'usual tariff forcommon h'orsesj and that the shipper signed a contract," which contains the provision: "It is slso agreed that of the company for damage to valuable live stock shall not exceed one hundred dollars for each animal, except by special agreementi" and t'liereby theliability;incl:\sesaid horse was damaged, was liriliteli and that said shipper:understood that he was shipping eaid hOrsetlb avaluatioli'of $100, add that if he shipped said horse at a greater rate than the rate he . greater valuation he would have did pay. To so much of said answer as sets up that the shipper "understood" the shipping to be at the valuation of $100, and that the shipping at a higher valuation would compel the payment of a higher rate than thatpaid, the intfilrvener filed on the ground that the writing set'uJp was c6nc]usivejand to the contract limitation set up he excepts on the ground, tha,t the receiver cannot thus limit his liability for negligence. The master heard counsel upon these exceptions to answer, and has filed his report sustaining them. To this report the receiver ,rpe onlyml/-tter now to be decided is raised by .. the exceptions to the master's report. dp lWt that under the authority of' Hart v. Railroad (b., 112 U. 8.331, 5aup. Ct. 151, a public carrier may agree with the shipper astotlle.valuation 'of the property carried; and that such valuation, formingjthe basis of the charges by the carrier,.and in a mirly tnade.an'd:agreedto·by the shipper before the shipment .fs entered upon, is binding on the shipper, and limits the extent of his recovery, even as against the negligence of the shipper. The receiver contends that the contract above quoted is within the rule announced in the Hart Case. The mas,ter's finding is adverse to this contention, and hold!'! this contract provision is, in effect, an attempt to stipulate against the consequences of the carrier's negligence, and not an agreement as to valuation. Counsel for receiver do not in their brief combat the proposition that a public carrier may not by contract stipulation exempt himself from the consequences of his negligence. But they contend that the contract in question, taken in connection with the averments of the answer, makes an agreed valuation of the property, and therefore conforms to the Hart Case, supra. The averments of the answer cannot be permitted to enlarge the contract provision. The answercohtains no allegations entitling the receiver
EELLS V. ST. LOUIS, K. & N. W. RY. CO.
905
to 8. reforming of the contra<:t. All previous and contemporaneous verbal negoti i,tions and agreements are merged in the contract,. and the contract cannot be varied or enlarged by parol testimony. It must stand or fall by its own plain terms. 1 Green!. Ev. § 305; Ang. Carr. (4th Ed.) § 229; Delaware v. Il'on Co., 14 Wall. 579; Hart v. Railroad Co., 112 331, 5 Sup. Ct. Rep. 151; Gilbert v. Plow Co., 119 U. S. 491, 7 Sup. Ct. Rep. 305. In determining the question presented, with reference to the contract provision attempting to exempt the carrier from the consequences of his own negligeilCe, regard must be had to the pleadings herein and the issues thereby presented. This action does not grow Qut of any liability of the. regeiver other than that of negligence. The petition of intervel)tion couI\tson negligence of the receiver, and on negligence alpne. And, however g:t;eatly the intervener may have been damaged, yet, if the damage was,occasioned from any other cause than negligence, the intervener cannot recover herein. Whatever might, therefore, be the effect of the contract provision in any case not founded on the cal:'rier's.negligeI;l.ce js foreign to the question under con/3ideration. The only question to; be determined is whether this contract provision is valid and enforce,able against the intervener when the property shipped has been damagl2ld through the receiver's negligence. of shipment was made and shipment wholly performed The within the state of Missouri, and counsel for the receiver have cited certain caSf,lS decided by the supreme courts of Missouri and Illinois, which are claimed to be decisive in favor of the receiver's position herein. However highly we may regard the decisions of those courts, and the learning manifested in their decisions, it is unnecessary to examine these line cases; for the supreme court of the United States, by an through many years, and in cases wherein was of involved the .liability of a common carrier, has established the rule that the right of a carrier of goods or passengers, by land or water, to stipulate for exemption from liability for his own negligence, is not a local question, upon which the decision of a state court must control; but that such question is a matter ·of general law, upon which the courts of the United States will exercise their own judgment, even when their jurisdiction. attaches only by reason of the citizenship of the parties, in an action at law, of which the courts of the state have con- · current jurisdiction, and upon a contract made and to be performed within the state. Myrick v. Railroad Co., 107 U. S. 102, 1 Sup. Ct. Rep. 425; Railroad Co. v. Lockwood, 17 Wall. 357; Bucher v. Railroad Co., 125 U. S. 555, 8 Sup. Ct. Rep. 974. And see Liverpool & G. W. Steam Co. v. Insurance Co., 129 U. S. 397,9 Sup. Ct. Rep. 469, and cases cited therein. Scruggs v. Railroad Co., 18 Fed. Rep. 318, was an action tried in the eastern district of Missouri to recover full value of goods lost by fire through the carrier's negligence, while being carried over the line of the defendant. The bill oflading provided that, unless the shipper had the values of his packages inserted in the bill of lading given him, the car-
906
J']tl>ERAL
REPORTER, vol. 52.
net would 'notbelill.bie 61'1responsible for an amount exeeeding $500 on the bill ofJadinl}; for the shipeach pa{}kage.No'vlllueS :!were ment in suit. Jl1dgmentfor$4,0'77.' In this decision Ju'dgeTREAT, in deCiding against the cartier's. contention that the shipper should be limited in his recovery to $50 per package, says: .. TllEi evidence disclosed tUat the loss: was caused by the negligence of the defendant. ... ... ... The loss having occurred through1thenegligence of the defendant" plaintiffs are entitled to recover the full value of the goods forwarded. with interest. II
The judgtneJh.t just oited finds abundant support in Harl v. Railroad 00., supra. Previous 'to the decision of the HartCase there had existed muchdisllgreement .among the courts of last resort in several states, in their holdings in thisquestionj and there yet obtains in a few states a different: dOctrine frorn:·that' announeed in the Hart 0186. But the wellconsidl:!re4and elabohttel'y argued opinion in the Hart Ckfse, receiving, as itdid; the'unanimous conCUrrence of all the justices ofthat emilient COUl't, has -American law to'the geheral acceptance of the dOOtrine tberehllannouliced. In the HartCaae the live-stock conlading, was -signed by and provided, among 'OWer provlSl'GnSj that the rate of freIght therem "on condition that the carrier assumes a liability on named was tbestock to theextetl1PbNhe follow[ngagreed valuation: If horses or $200 each j. if eattle or COWS,tlot exceeding $75 mules,' not each," etc.': istock shipp'Eld,: for whose injury damage was claimed inthll.t action, were valuable horses and other property. Plaintiff, Hart, claimed as damages $15,000 for olie bOl'Sekilled, and $3,500 .for the other foul' horses injured; The was tried below iIi the east· em district of Missouri; -and the rUling of Judges -McCRARY and TREAT, upon the validity oftniel c@ntractprovision, and sustaining it, is found ,in 7 Fed. Rep. 630. In delivering the ruling (page 632) the circuit court say: "The only question here is whether a man who delh'ers live stock to railroad company, to be transported upon cars, has a right to stipulate with the company concerning the value of the property." And testing the contract by the rule laid down in Railroad 00. v. Lockwood, supra; that the limitation must be reasonable in the eye of the law, the circuit court, speaking through Judge MCCRARY, say that "I do not see anything init contrary to equity and fnir dealingj" and thereupon the ruling is made "that the recovery must be limited by the amounts fixed in the coritract, ,i and the charge to -the jury is made accordingly, In the supreme and a verdict directed in accordance with the COO1't no question is raised by counsel save that pertaining to the validity . of the contract provision the correctness of the charge below, (112 U. S. 331, 5 Sup. Ct. Rep. 151 j) that is, the right of the carrier to Jilnit. through the pl'ovision in question, its1iability for damages caused carrier. The previ6us decisions of that by its negligence asa to the genetal doctrine obtaining in the United court ha.d left no Stutes courts that'vii-bite1a comnloncarrier might;by special contract, limit othercommon;.ll1w:liability, h& could not stipulate for eX'emption
EELLS ..,. ST.LOUIS, K. & N. W ·. RY. CO.
907
from consequences of his;negligence. York 00. v. Ckntral R. Co., 3 Wall. 107; Railroad Co. v. Lockwood; supm j Bank v. Express 00., 93 U. S. 174; Railroad Co. v. Stevens, 95 U. S. 655. And in the later cases the doctrinE' of the Lockwood Case, 8upra, (and which Judge MCORARY recognized in the Hart CUse, below,) had beep approved and followed, that no exemption from responsibility could be made by the carrier except such as was just and reasonahle in the eye of the law; and that it was not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for the negligence of himself and his servants. In complete harmony with this doctrine, the supreme court, in the Hart Case, supra, recognized the rule that where the shipper, by imposition and fraud, misrepresented the nature or the value of the article shipped, he destroyed his claim to indemnity; he had thus attempted to deprive the carrier of the right to be compensated proportionately to the value of the article and the risk thereby assured, and had lessened the vigilance which, it, may be properly assumed, the carrier would otherwise have exercised. Therefore it is but reasonable to permit the carrier to urge a corresponding qualification of the liability which, otherwise, the law would fasten upon him. And with reference to the contract provision in the Hart Case, tne supreme court, speaking through Justice BLATCHFORD, say: "Itisi>u,t just to hold the shipperto his agreement, fairly made as to value, even when the loss or injul'yhas occurred through the negJigence of. the car· rier.... .... '. The agreement as to value, ,in this case, stlmds1Jll ifJhe carrier had a$ked the value of the horse, and had been told by the plaintiff the The limitation as to value has no tendency to sum inserted in the exempt from liability from negligence. It does not ind uce wllnt of care. It exacts from the carrier the measure of care due to the vallie aJ{reed on. * * * The shipper is estopped from saying that the value is greater. The articles have. no greater value, for the purposes of transportation between the parties to the contract, * * * It is just and reasonable that, sucb! a contract, fairly entered 1.n.to and where there is 110 deceit practiced on .the shipper, should be upheld. There is no violation of pUblic policy." ' These extracts from the opinion in the Hart Case may be properly taken as a basis upon which is reached the decision by the. court announced (112 U. S. 331, 5 Sup_ Ot. Rep. 151) in the following words: "The distinct ground of our decision in the case at bar is that where a contract, of the kind signed by the shipper, is fairly made. agreeing on a valuation of the property carried, with the rate of freight based On the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by llegligence of the carrier, the contract will be upheld as a proper and lawful method of securing a due proportion lJetween the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations. It In the case at bar, the contract provision neither states nor .attempts an agreed vall}ation of the animal shipped. Whether the animal is of $100, $1,000, $10,000, or other value, the contract is silent. But the contract expressly provides fora limitation of liability to $100, without
90S'
FEDERAL REPORTER,vol.
52.
reference to the valuation of the ·anim81 shipped; and for the negligent killing of it horse of the value of 810,000, at time of shipment, there could be recovered, if the contract provision be upheld, no greater damages than for aharse of but $100 in value. Such a contract cannot be said to be, in the eye of the law, just Rnd reasonable, in its attempt to limit the responsibility for the negligence of the carrier. When tested by the extracts above given from the Hart Case, the failure of the contra:ct in case at bar to meet that test becomes strikingly manifest. "The agreement as to value in this [Hart] case stands as if the carrier had asked the vaJue of the horse, and had been told by the shipper the sum inserted in the contract." The exceptions to the master's report are therefore overruled.
CENTRAL TRUST
Co. OF NEW YORK et al. v. WABASH, ST. L. & P. Ry. Co., (ST. LOUIS,K. & N. W. Ry. Co., Intervener.) (Oircutt oourt, So D..Iowa, E. D.)
RAILROAD COMPANJES-REOBI"RS-LUBJLJTY ON CONTRAOTS.
The W. o St. L. & P.Ry., as assignee of the M., I. & N. Ry., held a half Interest , in a certain bridge and piece of track, the maintenance and repair of which was provided for In a wltb the other joint tenant. Receivers of the W.,St.L. &! P., includlnlr its leased line!!, among them the M., L & N., were ap. pointea,and made a sMoial contract for specific repairs, whloh were made by the Joint tenant iuaceordance:therewith. Thereafter a special reoeiver for the M., I. & N. was appointed. HeM, that the reoo{vers of the W., St. L. & P. were liable aSlluch for the repairs, t4011gh as against the Mo, I. & N. they might have had a good claim therefor.
In Equity. Petition of intervention by the St. Lonis, Keokuk & Northwestern Railway Company, to assert a claim against Solon Humphrey and Thomas E. Tutt, as receivers of the Wabash, St. Louis & Pacific Railway COll:lpany. Order for payment of claims. H. H. Trimble and Palmetr Trimble"for intervener. James a. Davis and Frank Hagerman, for receivers. WOOLSON, District Judge. The material facts involved in the hearing ,of this intervention are not in dispute. In April, 1882, the St. loUis, Keokuk. & NorUlrwestern Railway Company, the intervener ¥erein, (and who is spoken of as the St. Louis Company,) owned a line of track extending sQuthward from the city of Keokuk, Iowa. The Wabash, St. Louis & Pacific Railway Compally, (hereinafter spoken of as the Wabash Company,) was at that date operating its railway south from Keokuk, and was the assignee and Jessee of the Missoqri, Iowa & Nebraska Railway Company, (hereinafter spoken of as the Missouri Company.) Said Wabash Company (as such assignee and leasee·of said Missouri Company) and said St. LouisCo'l11pany were the joint owners of a bridge'over the Des Moines river; and said line of