The execution of a bill of lading by a railroad company establishes a contractual relationship between it and the shipper, the carrier agreeing, for a consideration, to transport and to deliver, and the shipper agreeing to pay the consideration. This is the contract. Elliott on Eailroads, vol. 4, sec. 1415. In addition to the obligations contained in the contract,
“He (the common carrier) exercises a public employment, and has duties to the public to perform.” York Co. v. R. R., 70 U. S., 112.
“Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.” Munn v. Illinois, 94 U. S.
“Railroads are common carriers, and owe duties to the public.” Joy v. R. R., 138 U. S., 51.
These duties of the common carrier, as such, do not rest upon contract, but are imposed by law (Elliott on Railroads, vol. 4, sec. 1454), and exist independently of contract, having their foundation in the policy of the law. Merritt v. Earle, 29 N. Y., 122.
Among these duties imposed by law, independent of contract, are to carry safely and to deliver within a reasonable time, and a breach thereof is a tort. Peanut Co. v. R. R., 155 N. C., 150, and at p. 164.
In Robinson v. Threadgill, 35 N. C., 41, and in Bond v. Hilton, 44 N. C., 308, Nash, C. J., says: “Where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an action on the case founded on the tort is proper,” and in Williamson v. Dickens, 27 N. C., 265, although the plaintiff could have sued in contract, he was allowed to sue in tort, and thereby avoid the defense of a discharge in bankruptcy.
These cases are approved in Solomon v. Bates, 118 N. C., 315, and the principle was approved by the Supreme Court of
These authorities and many others not only hold .that an action in ‘tort may be maintained for breach of. duty, resulting in damage, although the duty is imposed because of the relationship created by contract, but they go.further, and classify the action as one to recover damages for negligence.
“In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant.” 29 Cyc., 419.
If these views are sound, we come to the consideration of the question of the right of the common carrier to limit its liability by contract.
Prior to 1716, the common carrier was an insurer, and liable for losses occasioned by all causes except the act of God and the King’s enemies, and without power to' limit its responsibility (Fish v. Chapman, 2 Ga., 349, 46 A. D. 393); but this rule has been modified to the extent that the extraordinary liability as an insurer may be limited. 5 Eng. Eul. Cases, 346, note.
The courts have not, however, gone further and permitted the carrier to absolve itself from the consequences of its own negligence. Moulton v. R. R., 31 Minn., 85; R. R. v. Wynns, 88 Tenn., 320; Hudson v. R. R., 92 Iowa, 231; R. R. v. Hall, 124 Ga., 322; Express Co. v. Blackman, 28 Ohio St., 156; R. R. v. Lockwood, 84 U. S., 357; R. R. v. Solan, 169 U. S., 135; Calderon v. Steamship Co., 170 U. S., 272.
The consensus of opinion on this question is stated in Cyc., vol. 6, 385 and 388, as follows: “While considerations of public policy have been potent in determining the courts to recog
In the Phifer case, supra, tbis Court said: “It is well settled tbat no conditions in a common carrier’s bill of lading.can be allowed to exempt it from liability for losses occasioned by tbe negligence or mismanagement of its own servants and employees; for protection against sucb liability is a duty inseparable from tbeir occupation as public agencies. Tbis responsibility cannot be avoided, and a stipulation to tbis effect will not be enforced against sucb as may require tbeir services, even wben by reference inserted in tbe contract of transportation, tbe parties to it in tbis respect not standing upon equal footing.
“Amidst varying adjudications upon tbe extent to wbieb common carriers may limit tbeir liabilities by special agreement, we are disposed to accept tbe guidance of those made in tbe Supreme Court of tbe United States, not only because of tbe great learning and ability of tbe judges wbo constitute it, but tbat there ought to be uniformity in tbe law and its administration in all tbe States, and interstate and local commerce ought to be settled upon a permanent and well understood basis. We shall, therefore, seek instruction from tbat source to aid in arriving at a satisfactory conclusion as to tbe question now before us. Mr. Justice Field remarks, in reference to sucb special limitations: 'Where sucb stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement.’ York Co. v. R. R., 3 Wall., 113. So in R. R. v. Manufacturing Co., 16 Wall., 328, Mr. Justice Day says: 'Whether a carrier, wben charged upon bis common-law responsibility, can discharge himself from it by special contract, is not an open question since tbe cases of Navigation Co. v. Bank, 6 How., 344, and York Co. v. R. R., 3 Wall., 113. In both these cases tbe right of tbe carrier to restrict or diminish bis general liability by special contract, which does not cover losses by negligence
It is upon these principles that we have held that the valuation clause in a bill of lading is inoperative when relied on to exempt from liability for negligence, and cannot diminish the recovery of damages caused by such negligence. Gardner v. R. R., 127 N. C., 293; Everett v. R. R., 138 N. C., 71; Stringfield v. R. R., 152 N. C., 128; Kissenger v. R. R., 152 N. C., 247; Harden v. R. R., 157 N. C., 238.
It has heretofore been recognized that the cases of Jones v. R. R., 148 N. C., 449, and Winslow v. R. R., 151 N. C., 250, are not in harmony with the authorities in this State and elsewhere, and they are now overruled.
We are not inadvertent to the case of Hart v. R. R., 112 U. S., 331, declaring a different rule as to valuation clauses in bills of lading, which has been followed in some States and denied in others; but this authority, while entitled to the greatest respect on account of the high source from which it emanates, is not controlling', as it has been held in the Federal jurisdictions that no Federal question is raised upon the facts presented by this record.
In Latta v. R. R., 172 Fed. Rep., ..., the plaintiff brought suit in a State court of Nebraska to recover damages to a mare and colt, caused by the negligence of the defendant in transporting from one State to another. The case was removed to the Circuit Court of the United States for the District of Nebraska, and there tried, and upon the trial the defendant relied upon
In Hughes v. R. R., 191 U. S., the plaintiff brought suit in the courts of Pennsylvania for negligent injury to a horse, shipped from Albany, N. Y., to Oynwyd, Pa., under a bill of lading containing a valuation clause. A recovery was had in excess of the value in the bill of lading, and upon appeal the judgment rendered was affirmed by the Supreme Court of Pennsylvania. The case was then carried to the Supreme Court of the United States, by writ of error, and that Court-affirmed the judgment of the courts of Pennsylvania, saying in the course of the opinion: “The first error assigned in the common pleas court raised the question as to the law of the. contract. It does not assert that any Federal right was invaded or denied. It seems to have been conceded at the trial that the law of the State of New York, where the contract was made, permitted the making of a contract limiting the liability of the carrier to the agreed valuation in consideration of the lower freight rate for carriage, the shipper having the opportunity to have the larger liability for the value of the goods if the higher rate of freight for carriage was paid. This rule also prevails in the courts of the United States (Hart v. R. R., 112 U. S., 331; 28 L. Ed., 717; 5 Sup. Ct. Rep., 151), wherein it was held that a contract fairly made and signed by the shipper, agreeing on a valuation of the property carried, with a rate of freight based on such valuation, on the condition that the carrier assume liability only to the extent of such agreed valuation in case of loss by the negligence of the carrier, will be upheld as a proper and lawful mode of securing a due ‘proportion between the amount for which the carrier is responsible and the freight received, and of protecting the carrier
In the case before us the action is based on the common law, as in the Hughes case, and we have held that the valuation clause cannot have the effect of diminishing the recovery for damages caused by negligence, following a long line of decisions in this Court, and the same course was followed in the Pennsylvania case; and it would seem that if no Federal question could be found in the Hughes case, none can be found in this, in so far as the determination of the effect of the valuation clause in the bill of lading is concerned.
The defendant contends further, that if it is held that the plaintiff is entitled to recover $285, when the rate of freight was fixed upon the valuation of $100, that this would be a discrimination in favor of the plaintiff and an interference with the Interstate Commerce Act, and further, that Congress having legislated upon the subject-matter of this action, the courts of this State are without jurisdiction.
The principle involved is important, and has not been heretofore decided in this Court, although considered in the Kissenger case, where there is a clear intimation against the contention of the defendant.
We do not question the power of Congress to regulate interstate commerce, nor do we doubt the correctness of the decisions,
These cases, however go no further. In the Abilene case the shipper sought to recover freights which he alleged to be unreasonable, but which were such as had been established and approved under the Interstate Commerce Law; in the Mugg case the shipper sued to recover the difference between a rate quoted to him by the carrier and the regular classified - rate filed and approved by the Commission, which he had paid; in the Pitcairn case, tó compel by mandamus the discontinuance of certain regulations adopted by certain railroad companies for the distribution of ears to' coal mines in a time of car shortage, which regulations were alleged to be in violation of the Interstate Commerce Act; in the Robinson case, a schedule of charges for loading coal into cars was filed and approved by the Commission, under which 50 cents more per ton was charged for loading from a wagon than from a tipple. The plaintiff’s shipment came under the higher rate, and conceiving that the schedule unjustly discriminated between shipments loaded from wagons and those loaded from tipples, he brought action to recover the excess.
We have stated the subject-matter of these cases for the purpose of showing that in each case a clause of the Interstate Commerce Act, or a rule or regulation of the Commission, was directly involved, and we, therefore, conclude that they are not decisive of the question before us..
We will hereafter refer to the Reid case.
We come then to the contention of the defendant, that to permit a recovery of more than $100, when the freight rate was fixed on the basis of that value, would be a discrimination, and that, therefore, the Interstate Commerce Act abrogates the common-law right of action to recover damages.
This being true, the Supreme Court of the United States has laid down the rules by which the contention of the defendant is to be tested.
In the Abilene case, after recognizing the right at common law to recover freight charges in excess of a reasonable rate, and holding that the Commission having approved the rate, the courts could not, in the first instance, inquire into its reasonableness, the Court says: “As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not, in so many words, abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition, we concede that we must be guided by the principle that repeals by implication are not favored, and, indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.”
Again, it has been held in numerous cases that the fact that Congress has created the Interstate Commerce Commission, and given to it a large measure of control over interstate commerce, does not deprive the State of the right to enforce laws which may incidentally affect commerce, in the absence of action by Congress or the Commission as to the particular matter to be inquired of. A number of instances of such laws are collected in Cleveland C. C. and St. L. R. Co. v. Illinois, 177 U. S., 514, and the Court there says: “Few classes of cases have become more common in recent years than those wherein the police power of the State over the vehicles of interstate commerce has
The same rule was applied in Missouri Pac. Ry. v. Larabee Mills, 211 U. S., 612.
The expressions in Southern Ry. Co. v. Reid, supra, that Congress having taken'possession of the field — having taken control — are relied on to sustain the argument that this rule has been extended, and that now the State has no power to enforce any law which may remotely affect interstate commerce; but the language referred to must be read with the context, and when this is done it will be seen that the principle is sustained.
In the Reid case the Court quotes with approval the following from the Missouri Railway case, supra: “In other words, the mere grant by Congress to the Commission of certain National powers in respect to interstate commerce does not of itself and in the absence of action by the Commission interfere with the authority of the State to make those regulations conducive to the welfare and convenience of its citizens. . . . Until specific action by Congress or the Commission, the control of the State over those incidental matters remains undisturbed,” and then says: “The duty which was enforced in the State court was the duty of a railroad company engaged in interstate commerce to afford equal local switching service to its shippers, notwithstanding the cars concerning which the service was claimed were eventually to be engaged in interstate commerce. This duty was declared (p. 624) to be a common-law duty which the State might, ‘at least, in the absence of Congressional action, compel the carrier to discharge.’ The principle of that case, therefore, requires us to find specific action
The decision in the Reid case was upon the ground that, “By the specific provisions of the act to regulate commerce, as amended, Congress has taken control of rate making and charging for interstate shipments, and in that respect such provisions supersede State statutes on the same subject; and that a statute of North Carolina requiring common carriers to transport freight as soon as received to interstate points under penalties for failure, conflicts with the requirement of section 2 of the Hepburn Act of 29 July, 1906, ch: 3591, 34 Stat., 584, forbidding transportation until rates had been fixed and published, and is therefore unenforcible.”
Tested by these rules, the right of action of the plaintiff, as it existed at common law, is unimpaired, unless its recognition by the courts would render the act to regulate commerce nugatory, or unless Congress has acted on the subject-matter of this controversy.
Congress has legislated and the Commission has made rules and regulations to compel the performance of duty, and not for the purpose of excusing negligent conduct. The rates prescribed are to afford transporting property safely, and with reasonable care, and are not based upon the assumption that the carrier will not perform its duty, and neither Congress nor the Commission has provided a remedy for negligence, nor purported to relieve from its consequences.
A jury has found in this action that the property of the plaintiff has been damaged $285 by the negligence of the defendant, and if he cannot recover that sum in this action, he is without remedy. He cannot go to Congress, nor can he go to the Commission; and if the contention of the defendant is sustained, an act of Congress designed to regulate commerce and the rules of a commission created to administer its provisions will have the effect of reducing his claim to $100.
Conceding that the right of action exists at common law, it ' does not render the act of Congress nugatory to enforce it, and
Tbe implication we are asked to infer compels us to write into tbe act of Congress words that cannot be found there, and words which, if written in tbe bill of lading itself, would be void, according to our authorities, to wit, “that in consideration of tbe rate paid tbe carrier shall not be liable for negligence.”
Tbe case of Hughes v. R. R., 191 U. S., 477, seems to be directly in point against both contentions of tbe defendant. In that case tbe plaintiff brought bis action in tbe court of Pennsylvania to recover damages for negligent injury to a horse shipped from New York to Pennsylvania, and tbe defendant relied on tbe valuation clause in tbe bill of lading, and also urged that to permit a recovery for a larger amount than that named would be in conflict with tbe Interstate Commerce Act. Tbe Supreme Court of Pennsylvania held against tbe defendant on both points, and rendered judgment in favor of tbe plaintiff for tbe full amount of bis damages, and this judgment was affirmed by tbe Supreme Court of tbe United States. In tbe course of the opinion, tbe Court says: “Upon the authority of Missouri, K. and T. R. Co. v. Elliott, 184 U. S., 533; 46 L. Ed., 764; 22 Sup. Ct. Rep., 446, it may be admitted that tbe question of tbe decision of tbe State court being in contravention of tbe legislation of Congress to regulate interstate commerce was sufficiently made, and tbe adverse decision to tbe party claiming tbe benefit of that act gives rise to tbe right of review here. In refusing to limit tbe recovery to tbe valuation agreed upon, did tbe State court deny to tbe company a right or privilege secured by tbe interstate commerce law? It may be assumed that under tbe broad power conferred upon Congress over interstate commerce, as defined in repeated decisions of this Court, it would be lawful for that body to make provision as to contracts for interstate carriage, permitting tbe carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. But upon examination of tbe terms of tbe law relied upon, we fail to find any such provision therein.' Tbe sections of tbe interstate commerce law
This case was approved in W. U. Tel. Co. v. Milling Co., 218 U. S., 406, in which, after holding that intercourse between the States by telegraph is interstate commerce, a statute of Michigan was sustained declaring that “telegraph companies shall be liable for any mistakes, errors, or delays in the transmission or delivery, or for the nondelivery'of any repeated or nonrepeated message, in damages to the amount which such person or persons may sustain by reason of the mistakes, errors, or delays in the transmission or delivery, due to the negligence of such telegraph company or its agents, to be recovered with the costs of suit by the person or persons sustaining such damage,” although on the face of the telegram there was a stipulation that the company should not be liable for the nondelivery of an unrepeated message beyond the amount paid for the telegram, the Court saying in conclusion: “The telegraph company in the case at bar surely owed the obligation to the milling company to not only transmit the message, but to deliver it. For the failure of the latter it sought to limit its responsibility, to make the measure of its default not the full and natural consequence of the breach of its obligation, but the mere
Tbe Supreme Court of South Carolina has recently decided both questions presented by tbis appeal against tbe contention of tbe defendant. Elliott v. R. R., 75 S. E. R., 886.
There is also authority for tbe position that tbe Interstate Commerce Act, as amended in 1906, instead of taking away tbe right of action of tbe plaintiff, preserves it.
In Latta v. R. R., 172 Fed. Rep., 850, tbe plaintiff sued to recover damages for injuries caused by. negligence to a mare and colt, shipped from Nebraska to Iowa, under a bill'of lading containing a valuation clause, and tbe action was removed to tbe Circuit Court of the United States. Upon tbe trial, tbe defendant relied on tbe clause in tbe bill of lading limiting tbe amount of recovery, and it was also shown “that tbe rate of $24.38 charged by tbe defendant for tbe transportation of tbe animals mentioned was its regular tariff based upon tbe valuation stated in tbe contract. It was also conceded at tbe trial that said tariff rate bad been filed with 'the Interstate Commerce Commission, and published as required by law, and that tbe rules, regulations, and tariffs of tbe defendant on file with tbe Interstate Commerce Commission disclosed that tbe above-named rate applied to tbe limited liability contract in use by .the company for tbe transportation of live stock.” Upon appeal, tbe Circuit Court of Appeals held that the plaintiff bad tbe right to recover tbe full amount of bis damages, and that tbe Interstate Commerce Act, instead of taking away tbis right, preserved it, tbe Court saying in reference to' tbe last question: “It is claimed, however, that Congress has legislated upon tbe very subject now under discussion, and that in consequence thereof tbe law of Nebraska, so> far asUt is sought to enforce tbe same against tbe provisions of a contract in relation to interstate commerce, is inoperative. In tbis connection our
We conclude, upon reason and authority:
(1) That under the common law as administered in this State, the valuation clause in a bill of lading does not relieve from the consequences of negligence.
(2) That if the common law was different, the Legislature of the State would have the power to pass an act providing that such a clause should not relieve against negligence.
(3) That the Supreme Court of the United States recognizes and follows the decisions of the courts of the State on this question, in cases originating in the State courts, whether based on the common law or statute, although it would hold otherwise in cases originating in the Federal jurisdiction.
'(4) That Congress has not, in the act to regulate commerce, purported to relieve against negligence.
(5) That Congress having failed to act in .this particular, this State may administer its own laws and enforce its settled policy.
(6) There being no express language in the act of Congress abrogating the common-law right of action of the plaintiff, if abrogated at all, it must be by implication.
(7) That the abrogation of the right will not be implied, unless to permit it to exist would render the act of Congress nugatory.
(8) That the enforcement of the right of action is not in conflict with the terms or purpose of the act of Congress, and therefore its abrogation will not be implied.
(9) That if Congress has legislated upon the matter in controversy, the right of action of the plaintiff is preserved by the proviso in the act.
We are, therefore, of opinion there is no error.
No error.