L. & N. R. R. Co. v. Levi & Ottenheimer

COMMON CARRIERS. [Hamilton Circuit Court, January, 1893.] Swing, Smith and Cox, JJ. L. & N. R. R. Co. v. Levi & Ottenheimer. Liability for Goods Shipped at a Reduced Rate. A common carrier receiving goods for transportation, at a value lower than their actual value, and in consequence thereof, ships the same at a reduced rate, such carrier remains liable for the full value of the goods, there being no agreement of contract in the bill of lading as to any limitation on account of loss or damage, by reason of any reduction ol freight. Error to the Court of Common Pleas of Hamilton county. [MAJORITY — Swing, J.] Swing, J. “ We think that the judgment should be affirmed. Plaintiff’s actio» was for the loss of a barrel of whiskey valued at $78, which was alleged! to have been received by the defendant below as a common carrier to be carried from McKenzie, Tenn., to Cincinnati, O., and while in the possession of the defendant was lost. The defendant admitted having received the barrel of whiskey, and the loss thereof, but say they received! it as of the value of seventy-five cents a gallon, or $28.86 for the barrel;; that it was shipped under a reduced rate of twenty-five cents per hundred pounds; that whiskey of greater value was to pay forty cents per hundred pounds; and defendant admitted liability for the said amount of $28.36, which it was willing at all times to pay plaintiffs. ‘‘ ‘We think the defendant has failed in its proof to sustain the allegation of its answer. The bill of lading, or contract of carriage, does not support the defense set up. No rate is given. The value is placed at seventy-five-' cents a gallon, but there is no agreement of contract as to any limitation on account of loss or damage, by reason of any reduction of freight. Ik is a mere statement as to value, and no reason is given why it was. placed on the contract or bill of lading; so in our opinion it is not necessary for us to pass on the question, which was argued before us, at length, viz., whether a contract of a common carrier limiting its liability would be sustained, when the loss was occasioned by its own negligence, as there was no such contract here. “ Furthermore, the judgment should be sustained as far as such . alleged errors that occurred were brought up on the motion for a new trial, as the bill of exceptions does not bring up all of the evidence. It is true that it purports to do so, but an examination of the bill discloses the fact that quite a lot of matter introduced as evidence was not brought into the bill or made part of the record. We find no errors of the court in the admission or exclusion of evidence. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error. Yaple, Moss & McCabe, for Levi and Ottenheimer. The judgment will therefore be affirmed.