Payne v. Basset , 235 S.W. 917 ( 1921 )

I concur in the reversal of this case for the following reasons:

The Interstate Commerce Act provides that —

"No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act. * * * See par. 7, of art. 8569, U.S. Compiled Statutes 1918."

Rates and charges for the transportation of solid silverware not having been filed and published, the contract for the transportation of plaintiff's silverware was in violation of the law quoted, and therefore illegal. It was also perhaps in violation of the provisions of the law against undue preferences and illegal on that account.

The proposition relied upon by appellee, as stated in his brief, is that:

"The goods in question having been received by the defendants in the court below, for transportation from a point in Texas to a point in Illinois, and having failed to account for or make delivery of said goods to J. M. Bassett, the owner and shipper, the said defendants became liable to said J. M. Bassett for the full actual loss caused by said defendants, notwithstanding the fact that the tariff in force and approved by the Interstate Commerce Commission had no tariff in force fixing the rates for the shipment of articles manufactured from precious metals."

In support of his position appellee invokes article 8604a, U.S. Compiled Statutes 1918; which provides that:

"Any common carrier, railroad, or transportation company subject to the provisions of this act receiving property for transportation from a point in one state or territory or the District of Columbia to a point in another state, territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one state, territory, or the District of Columbia to a point in another state or territory, or from a point in a state or territory to a point in the District of Columbia, or from any point in the United States to a point in an adjacent foreign country, or for transportation wholly within a territory shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void."

Appellee says that the silverware having been received by the carrier it became liable for its value under the last-quoted act. A literal interpretation of the act perhaps sustains this view, but, in my opinion, it was not intended by Congress to apply, and should not be construed as applying, to property received by a carrier for transportation in violation of other provisions of law. I think it should be construed as applying to property lawfully received for transportation. And the action in this case being based wholly upon the contract of transportation, and since such contract was illegal, an action for the breach thereof cannot be maintained.

The contract in this case, though unlawful, is not in itself immoral, and in cases where a person has parted with property or money on the faith of such an unlawful contract, relief in all instances will not be denied. The rule in such cases is thus stated by Mr. Justice Gray in Central Transportation Co. v. Pullman Palace Car Co., 139 U.S. 24, 60,11 S. Ct. 478, 488 (35 L. Ed. 55):

"A contract ultra vires being unlawful and void, not because it is in itself immoral, but because the corporation, by the law of its creation, is incapable of making it, the courts, while refusing to maintain any action upon the unlawful contract, have always striven to do justice between the parties, so far as could be done consistently with adherence to law, by permitting property or money, parted with on the faith of the unlawful contract, to be recovered back, or compensation to be made for it. In such case, however, the action is not maintained upon the unlawful contract, nor according to its terms, but on an implied contract of the defendant to return, or, failing to do that, to make compensation for property or money which it has no right to retain. To maintain such an action is not to affirm, but to disaffirm, the unlawful contract."

Other decisions to the same effect are Rankin v. Emigh, 218 U.S. 27,30 S. Ct. 672, 54 L. Ed. 915; Citizens' Central National Bank of N.Y. v. Appleton, 216 U.S. 196, 30 S. Ct. 364, 54 L. Ed. 443; Logan County National Bank v. Townsend, 139 U.S. 67, 11 S. Ct. 496, 35 L. Ed. 107; Aldrich v. Chemical National Bank, 176 U.S. 618, 20 S. Ct. 498,44 L. Ed. 611; Bond v. Terrell Cotton Woolen Mfg. Co., 82 Tex. 309,18 S.W. 691.

The present record does not bring the case within the principle announced in the cited cases. The action is based wholly upon the contract of transportation, and the evidence is insufficient to bring the case within rule announced, but upon retrial it may be that a liability may be shown independent of the illegal contract. I, therefore, concur in reversing and remanding for retrial.