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for a day's labor, and the cost of all necessaries of life, even to the loaf of bread.” The court further says on tbis same subject: -Jurists and statesmen, practically without conflict, bave repeatedly said 'the right of contract is the greatest of all blessings enjoyed by a free people, and guaranteed us by a constitution so long as that instrument may last.” And the court quoting from the constitution that “no man shall be deprived of the equal protection of the laws," calls attention to the fact that “tbe statute expressly excepts from its provisions assemblies or associations of laboring men." The court holds that the case of Waters-Pierce Oil Co. against the state of Texas, 177 U. S. 28, does not cover this case because that in the Texas case the corporation entered the state and was licensed at a time when there was a valid statute prohibiting certain corporations from doing certain things, and that the complainants in the present case were rightfully in Nebraska when these illegal or unconstitutional statutes were passed. The court distinctly holds that the legislature of Nebraska can place onerous burdens on foreign insurance companies, and they can discriminate in favor of Nebraska insurance companies, but says that the statutes with which I am dealing apply to all insurance companies, resident and foreign, and the statutes are equally void, in my judgment, as to all."
subjects of a similar character might be legis. lated into the statute books, and that the foreign insurance companies would be required to consent thereto, and that the state had a right to exclude foreign corporations from doing business therein. The court didn't hold the statute to be unconstitutional because it provided a fee to the prosecuting attorney in each case brought against insurance companies, although the Supreme Court of the United States in Texas and Kansas cases had held similar laws to be un. constitutional, but it did hold that the statute in question was unconstitutional because under the terms of the statute an agreement to lower the rates becomes unlawful if that statute is valid." The court intimates that such a provision is not the exercise of a police power on which so much stress was laid by the attorney-general in his application of the case of Pauly. Virginia.
The statute under consideration was intended to prevent any combination of capital or skill, or acts whereby the price of any article, commodity, use or merchandise may be fixed, and is intended to prevent restrictions in trade, the limiting of the production, or the increase or decrease of the price of any commodity, and to prevent competition in insurance, or in making, transporting, selling or purchasing any article, or to fix any standard whereby its price to the public sball in any manner be established, or to enter into any contract whereby any party is not to deal in any article below a certain price, or by which the parties agree to keep the price at any sum. The statute also declares that any persons violating the same shall be conspirators, and punished accordingly, that any corporation of the state violating the same shall have its corporate existence declared forfeited by suit, and any foreign corporation violating the same is to be driven from the state, that all contracts in violation of the statute are absolutely void, that any purchaser of a commodity in violation of the statute can plead the violation as a complete defense, and any person injured in his business, property or employment by any violation of the stat. ute can recover damages, any person or corporation accused of violating the statute can be compelled to furnish all books and papers on the question, and finally the statute exempts any assembly or association of laboring men from the provisions of the statutes. The court in its decision says:
“It cannot be said of this statute that any one material provision may be held void and allow the balance of the statute to stand and be enforced. Of some statutes that rule can be invoked. If this statute is valid two men in the same line of business cannot form a partnership if he tends to maintain prices. Nor can a corporation be formed by two or more, if by so doing the price is maintained. The statute is not a step, but it is a long stride, hundreds of years backward, wben monarchs, cabinet officers and every parliament decreed the price to be paid
TERMINATION OF EXTRAORDINARY LIABILITY OF CARRIER OF
It is the policy of the law to secure from common carriers the highest degree of care and diligence with reference to the goods intrusted to them. Before the introduction of railroads the carrier by land was liable for loss of or damage to goods intrusted to him for transportation till they reached the hands of the consignee, unless the loss or damage was occasioned by the act of God or of the public enemy. The rule that the liability of the carrier is that of an insurer against loss or damage has been long held to be subject to exception in cases where the loss or damage is occasioned by,
1. The act of God ;3
1 Merchants' Disp. T. Co. v. Hallock, 64 III. 286.
2 Willock v. Pa. R. Co., 166 Pa. St. 184, 45 Am. St. Rep. 674; McCarthy v. L. & N. R. Co., 102 Ala. 193.
3 In this term are included accidents which are the result of natural causes, apd which are beyond human power to prevent; as earthquake, lightning, death, etc. Long v. Pa. R. Co., 147 Pa. St. 343; Mer: chants' Disp. T. Co. v. Smith, 76 III. 542; Maybin v. S. C. R. Co., 8 Rich. (L.) 240, 64 Am. Dec. 753.
2. The act of the public enemy;"
negligence. The liability of the carrier 3. The act of the public authority 15 when acting in that capacity has been ex4. The act of the shipper ;6
plained as the liability of an insurer; and the 5. The inberent nature of the goods.? exceptions to the rule have been set out. As
The basis of the carrier's libility is the trust contradistinguished from the high degree of reposed in bim; and the liability can arise liability attaching to the carrier as a carrier, on a complete delivery to him of the goods a warehouseman is responsible for ordinary for transportation, and the delivery must be care merely, and is not liable for the defor immediate transportation ; otherwise, tbe struction of the property by fire or by inliability of the carrier will be that of ware evitable casualty, or for its loss by theft. 18 houseman merely. However, to constitute It will be clearly seen that by reason of the delivery and acceptance no receipt or other different duties and the varying nature of the writing is necessary.' Thus, to illustrate, if liability it is frequently of the utmost imgoods are delivered at a railway company's
portance to determine when the carrier's dustorehouse to be kept till further orders and
ties as a carrier cease, and when his duties directions as to shipping, destination, etc.,
and consequent liability as a warehouseman the company is liable, not as carrier, but as
begin. As to this there are two widely warehouseman.10 And so, after the goods divergent views. But fortunately the courts are delivered to the carrier, if anything re of the various states bave, as a general thing, mains to be done by the shipper to conform taken their stand squarely on the one side or to the law or the contract, the relation of on the other. One set of courts follows the shipper and carrier bas not begun." Where rule laid down in 1854 by the Supreme Cour a railway company allows wool to be stored of Massachusetts, and which is known as in its warehouse without any arrangement as
The Massachusetts Rule.-This is, that the to shipment, it will be held liable in case of liability of carrier as carrier is ended when destruction by fire only on proof of gross
he has carried the goods to their destination
and bas placed them in his warehouse to + Coggs v. Bernard, 2 Ld. Raym. 909; Liv. L. C.
await delivery to tbe consignee. From that Liverpool S. S. Co. v. Phænix Ins. Co., 129 U. S. 397. moment he is responsible as warehouseman Mobs, robbers, and strikers cannot be classed
only. This rule bas been adopted in Illilic enemies, as the term is used in this exception; otherwise with pirates who are the Ishmaelites of
nois, Indiana, Iowa, Georgia, Missouri, commerce. R. Co. v. Nevill, 60 Ark. 375, 46 Am. St. North Carolina, Tennessee and South CaroRep. 208. While a mere refusal of his employees to
lina. The other view was adopted by the work does not relieve the carriers from liability
New Hampshire court in 1856, and is com(Pittsburgh, Ft. Wayne & C. R. Co. v. Hazen, 84 Ill. 36, 25 Am. Rep. 422; Haas v. K.C., Ft. S. & G. R. Co., monly referred to as 81 Ga. 742), the rule is otherwise where there is an The New Hampshire Rule.-Under this accompanying feature of intimidation and mob violence which the carrier cannot overcome. Empire
view the liability of the carrier, as such, is Transp. Co. v. P. & R. Coal, etc. Co., 35 L. R. A. 623, perpetuated until the consignee has had a and cases cited in note.
reasonable time after the arrival of the goods 5 As where goods are seized in transit, and con
to inspect them and take them away in the demned to destruction because they are infected by disease, or where intoxicating liquors are destined to
usual course of business. This is the rule a use contrary to the laws of the states. R. Co. v. more generally adopted, as will be seen by O'Donnell, 49 Ohio St. 489, 34 Am. St. Rep. 579.
reference to the decisions hereafter cited 6 As where he conceals from the carrier the character of the goods shipped, and such concealment is
from the courts of Alabama, Arkansas, Conthe cause of the loss. McCarthy v. Louisville R. Co., necticut, Kansas, Kentucky, Louisiana, 102 Ala. 193, 48 Am. St. Rep. 29.
Michigan, Minnesota, Nebraska, New York, 7 As perishable fruits or vicious animals. Cent. R.
New Jersey, Pennsylvania, Obio, Texas, Co. v. Haselkus, 91 Ga. 382, 44 Am. $t. Rep. 37; May. nard v. S. B. & N. Y. R. Co., 71 N. Y. 100; Betts v. C.,
Vermont, Wisconsin and West Virginia. R. I. & P. R. Co., 92 Iowa, 343.
1. The Massachusetts Rule.--The leading 8 Iron Mt. R. Co. v. Knight, 122 U. $. 79; Barron v. Eldredge, 100 Mags, 455. L. & N. R. Co. v. Fulghan, 91 Ala. 555; The Cal
12 Tex. Cent. R. Co. v. Flanary, 50 S. W. Rep. 726; edonia, 43 Fed. Rep. 681.
Hopsgood Plow Co. v. Wabash R. Co., 61 Mo. App. Schmidt y.C. & N. W. R. Co. (Wis.), 63 N. W. 372. Rep. 1057.
13 Am. Brewg. Asso. v. Talbot, 141 Mo. 674; Francis 11 Dixon v. Cent, R. Co. of Georgia, 35 S. E. Rep. 369. 1 y. Dubuque, etc. R. CO., 25 Iowa, 60.
case is Norway Plains Co. v. Boston, etc., delivery is necessary, it may be said that deR. Co.,14 though the rule was announced in livery by themselves as common carriers to the previous case of Thomas v. Boston, etc., themselves as keepers for hire, conformably R. R. Co.1 Under this rule the carrier's to the agreement of both parties, is a delivliability does not cease until the goods are ery which discharges their responsibility as unloaded from the car, 16 though neither notice common carriers. If they are chargeable nor delivery to the consignee personally is after the goods have been landed and stored, necessary to relieve the carrier from his lia the liability is one of a very different cbaracbility as insurer.17 “It is part of the com ter, one wbich binds them only to stand to pany's duty as carrier,” said the Supreme loses occasioned by their fault or negliCourt of Massachusetts in Rice v. Boston & gence.” If the consignee is not ready to W. R. Co.,18 “when it bas brought the goods receive the goods on arrival, the carrier can to their destination, or to the terminus of its discharge himself of bis liability by storing road, to unload them with due care and to them safely in charge of competent servants, place them where they will be reasonably and ready to be delivered when called for by safe and free from injury.” The contract for the proper parties. The rights of the parcarriage calls, not merely for the transporta ties are not affected by the fact that the tion to a particular point, but also for the merchandise is placed on a platform, indelivery of the merchandise to the consignee, stead of being unloaded directly into the or putting it into a suitable place where it warehouse.22 can be received by him. Thus, where a Modification Depending on the Nature of cargo of assorted coal was unloaded on the the Consignment.—No absolute rule can be ground at the place of destination, and could laid down which will cover, in all cases, the not be gathered up without taking up dirt acts which will relieve the carrier of his liaand mixing tbe different kinds of coal, there bility. In an important Iowa case23 Rothwas a recovery for the damage.19
rock, J., said that the carrier's "duties must In Norway Plains Co. v. Boston & M. R. vary according to the nature of the consignCo.,20 these points were covered by Chief ment. In the cited cases24 the property Justice Shaw in the following language: was such that it could be removed from the “Although there is no separate charge for cars and placed in an ordinary depot warestorage, yet the freight to be paid, fixed by house. But in the case at bar the grain was the company, as compensation for the whole in bulk. It was not expected by the parties service, is paid as well for the temporary that it would be removed from the car by the storage as for the carriage. This renders railroad company and carried into its wareboth the services, as well the absolute under house. It was its duty to place it in such a taking for the carriage, as the contingent position on its track that it could be safely, undertaking for the storage, to be services and with a reasonable degree of convenience, undertaken to be done for hire and reward. uploaded by the plaintiff; and it was the * * * We may then say in the case of | right of the plaintiff to refuse to unload the goods transported by railway, either that it car until it was so placed ; and so long as the is not the duty of the company as common defendant, in obedience to its obligation as a carriers to deliver the goods to the con common carrier, was required to move the signee, which is more strictly conformable to car upon the track, its liability as such comthe facts, or, in analogy to the old rule that mon carrier did not cease.” And so in Pin14 1 Gray, 266, 61 Am. Dec. 423.
dell v. St. Louis & H. R. Co.,25 it was held 15 10 Met. 472, 43 Am. Dec. 444. 16 Chicago & N. W.R. Co. v. Bensby, 69 III. 630.
21 Gashweiler v. Wabash, St. L. & P. R. Co., 83 Mo. 17 Porter v. Chicago, R. I. & P. R. Co., 20 III. 407, 71 112; Buddy v. Wabash, St. L. & P. R. Co., 20 Mo. Am. Dec. 286; Merchants' Disp. T. Co. v. Moore, 88 App. 206; Cahn v. Mich. Cent. R. Co., 71 III. 96. III. 138; Chicago & N. W. R. Co. v. Jenkins, 103 III. 22 Cahn v. Mich. Cent. R. Co., 71 III. 96. 599; C., R. I. & P. R. Co. v. Kendall, 72 Ill. App. 105; 23 Independence Mills Co. v. Burlington, C. R. & N. Mohr y. Chicago & N. W. R., 40 Towa, 579; Cin., etc. R. Co., 72 Iowa, 555. In this case the case ot Mohr Air Line R. Co. v. McCool, 26 Ind. 140.
v. Chicago & N. W.R. Co., 40 Iowa, 579, and Francis 18 98 Mass. 212.
v. Dubuque & L. C. R. Co., 25 Iowa, 60, were re. 19 See Barron v. Eldredge, 100 Mass. 455, 1 Am. ferred to as laying down the rule in Iowa. Rep. 126.
24 See previous note. 20 Supra.
25 41 Mo. App. 84.
that if the railroad company notifies the con- | safe place ready for delivery on demand.si signee of the arrival of a carload of wheat, But if the freight does not arrive within the and places it in a safe place awaiting his ac accustomed time, notice must be given and tion, it is not liable, in the absence of negli a reasonable time allowed for removal. The gence, for the subsequent destruction of the decision of this case was effected by a prowheat by fire. Other cases than those al. vision of the Code. 32 ready cited holding that a railroad company Tennessee.--In this state, by an act of becomes a warehouseman, as matter of law, 1870, the carrier was required to give notice when the duty of transportation is over and of the arrival of goods at their destination, it has assumed the position of warehouse but this has been construed not to extend man as a matter of fact, will be found in the the carrier's liability. Tennessee, though it note below.
has been said in some places to be among California. - The Massachusetts rule was those states which follow the New Hampadopted in this state by the case of Jackson shire rule, has uniformly and firmly adhered V. Sacramento Valley R. Co.,27 but subse- | to the Massachusetts doctrine.33 quently the rule was changed by legislative 2. The New Hampshire Rule.-The leadenactment providing that "if, for any rea. | ing case on this line of authority is Moses v. son, a carrier does not deliver freight to the Boston & M. R. Co.,34 where the Massachuconsignee or his agent personally, he must setts doctrine, while acknowledged to be of give notice to the consignee of its arrival, and a practical character, is said to sacrifice the keep the same in safety, upon bis responsi approved principles of the common law to bility as a warehouseman, until the consignee considerations of convenience and expedihas bad a reasonable time to remove it." ency. McClellan, J., in Columbus & W. R. And the sentiment of the courts of that state Co. v. Ludden,35 in an able opinion, declared is in harmony with the change ; for, in Wilson the position of these courts to be “that the V. Cal. Cent. R. Co.,28 Van Clief, J., said: liability of a common carrier by rail as an *The rule requiring railroad companies to insurer of the consignment continues throughgive notice to consignees of tbe arrival of | out the transit and until the goods bave been their goods, so far as practicable, in order unloaded from the cars and deposited in the to reduce the liability of the carrier to that depot or warehouse of the carrier, or otherof a warehouseman, irrespective of statutory wise made ready for delivery, and a reasonenactment, seems to be founded upon the able time thereafter has elapsed to afford the better reason, and supported by the weight consignee an opportunity to come and take of authority in the states and in England.” them away, and that only after the lapse of
Georgia.—In Rome R. Co. v. Sullivan,29 a reasonable time, beginning when the one of the judges made some observations transit is complete and the shipment is seeming to indicate the necessity of notice, ready for delivery, will tbe liability, in the but such remarks were obiter dicta, the ques absence of special stipulation of the carrier, tion of notice not being involved. In a late as such be converted into the less rigid and case 30 it was held that notice is unnecessary exacting liability of a warehouseman for reif the goods arrive in the usual time, the ward.” “The rule adopted in MassachuCarrier being relieved of his carrier's liability sett,” said Seymour, J., in Graves v. Hartin such a case by depositing the goods in a ford & N. Y. S. B. Co.,86 "puts an end to
the carrier's responsibility as such, just 2 Rice v. Hart, 118 Mass. 201, 19. Am. Rep. 433; where that responsibility is of the highest Blaiedell v. Com. R. R. Co., 145 Mass. 132; Neal v.
value to the shipper. Between the deposit Wilmington & W. R. Co., 53 N Car. 482; Turrentine v. Wilmington & W. R. Co., 100 N. Car. 375; Norris #L. R. Co. v. Ayers, 29 N. J. L. 593; McCarty v. N. si Almond v. Ga. R. & Bkg. Co., 95 Ga. 725. Y. & E. R. Co., 30 Pa. St. 247; Allen v. Pa. R. Co., 3 32 See also West. & A. R. Co. v. Camp, 53 Ga. 596; Pa. Sup. Ct. Rep. 235; Shenk v. Phila., etc. Co., 60 | Ga. & A. Ry. v. Pound (Ga.), 36 S. E. Rep. 312. Pa. St. 109, 100 Am. Dec. 541; Shepherd v. Aristol & 33 East Tenn., V. & G. R. Co. v. Kelly, 91 Tenn. 699, E.R. Co., L. R. 3 Excb. 189.
17 L. R. A. 691; Butter v. East Tenn. & V. R. Co., 27 23 Cal. 268.
Lea, 32; Souih. Exp. Co. v. Kaufman, 12 Heisk. 165 94 Cal. 166, 17 L. R. A. 685.
34 32 N. H. 523. 99 14 Ga. 277.
35 89 Ala. 612. 80 S. W. R. Co. v. Felder, 46 Ga. 433.
36 38 Comm. 143, 9 Am. Rep. 369.
of the goods on the platform and their deliv moval of the goods within the meaning of ery to the consignee, they are exposed to this rule must always be a question to be detheft, depredation and injury by strangers termined in view of the facts of the case ; and by the carrier's employees. In making and, the facts not being in dispute, this delivery, care is needed to avoid mistakes question is for the decision of the court. 42 and attention required to see if the good are | It is such time as will enable one living in uninjured. During the whole process of de | the vicinity of the place of delivery to inlivery, until fully completed, the goods should spect and remove the goods in the ordinary remain in the care of the carrier upon the course of business, and in the usual business full responsibility pertaining to him as such.” hours. In one case where three days had “If the consignee is present upon the arrival passed after notification to the consignee and of the goods, he must take them without un. request to remove the goods, this was held · reasonable delay. If he is not present, but | sufficient time to relieve the carrier of his lives at or in the immediate vicinity of the extraordinary liability.44 In another case place of delivery, the carrier must potify him the consignee was notified on a Saturday of of the arrival of the goods, and then he has the arrival of cotton at the carrier's dock, a reasonable time to take and remove them. but left part of it there till the following If he is absent, unknown, or cannot be Wednesday, when it was burned. The car. found, then the carrier can place the goods rier was liable only in case negligence on his in its freight house, and after keeping them a part was shown.so reasonable time, if the consignee does not Modification by Usage or Contract.-In call for them, its liability as a common carrier any case, however, the whole question of liaceases.'»37
bility may be governed by customary usage When the question was first presented to or special contract.46 For example, goods the Supreme Court of Michigan, the court were consigned to the shipper's order, with was equally divided and no decision was a direction that a third person should be noreached. This case, however, is important tified of their arrival at place of destination. for a valuable opinion of Justice Cooley, in It was held that such notice relieved the which that eminent jurist discussed the ques company of liability as carrier.47 In a retion on its merits and reviewed the authori. cent Georgia case, 48 it was held that in order ties.38 This opinion evidently bore fruit,
Arthur v. St. P. & D. R. Co., 38 Min. 965; Burling. for very soon after, in the case of Buckley v.
ton & M. R. Co. v. Arms, 15 Neb. 69; L. L. & G. R. Gt. West. R. Co., this court declared its ad Co. v. Norris, 16 Kan. 333; Maigvan v. New Orleans, hesion to the New Hampshire view.39 A
| J. & G. N. R Co., 24 La. Anp. 333; Wood v. Crocker,
18 Wis. 345, 86 Am. Dec. 773; Winslow v. Vermont R. good statement of the considerations that
Co., 42 Vt. 700, 1 Am. Rep. 365; Blumenthal v. have induced the adoption of this rule is to Brainard, 38 Vt. 402, 91 Am. Dec. 350; Berry v. W. be found in the opinion of Peters, J., ip Mo
Va. & R. R. Co. (W. Va.), 30 S. E. Rep. 143; Back:
baus v. C. & N. W. R. Co. (Wis.), 66 N. W. Rep. 400; bile & G. R. Co. v. Prewitt. 40 Speaking of
Mo. Pac. R. Co. v. Wichita, etc. Grove Co. (Kan.), 40 a consignment of goods in care of the railway Pac. Rep. 899; Mo. Pac. R. Co. v. Nevill, 60 Ark. 375; company, he said it could not be considered
Kirk v. C., M. &st. P. R. Co. (Minn.), 60 N. W. Rep.
1084. In the last case the goods were left in the car that such a bailment was without hire, though
for 48 hours after they had reached their destination. no storage charges had beeen demanded. | In the absence of proof of any custom to deliver such "The accommodation itself is one that has a
goods from the car, the company was held liable as
carrier for their destruction. strong tendency to bring business to the
12 Laporte v. Wells, Fargo & Co.'s Exp. Co., 48 N. company. * * * Thus the company is Y. St. 292. paid for the use of its depots by the increase
L. L. & G. R. Co. v. Norris, 16 Kan. 333; Kinney
v. St. Paul & P. R. Co., 19 Minn. 251; Woody. of its business.” Other cases supporting
Crocker, 18 Wis. 345, 86 Am. Dec. 773. these propositions are to be found in the 44 Anniston & A. R. Co. v. Ledbetter (Ala) note.41 What is a reasonable time for re
45 Wymanskill Knitting Co. v, Murray, 90 Hun, 65+,'
46 The contract may be one fairly ipferable from 37 Tenner v. Buffalo & S. L. R. Co., 44 N. Y. 503, 4 the nature of the business. Feige v. Mich. Cent. R. Am. Rep. 719.
Co., 62 Micb. 1. And see Hedges v. Hudson River K. 38 McMillan v. Mich., S. & N. I. R. Co., 16 Mich. 79. | Co., 49 N. Y. 223. 39 18 Mich. 121.
47 Collins v. Ala., G. S. R. Co. (Ala.), 16 South. 40 46 Ala. 63, 7 Am. Rep. 586.
Rep. 140. 41 Faulkner v. Hart, 82 N. Y. 413, 37 Am. Rep. 574; T 48 Georgia & A. R. Co. v. Pound, 36 S. E. Rep. 312.