Courts of the United States are without jurisdiction in an action where the matter in controversy is less than $2,000, and so this action could not have been brought in the United States Circuit Court, as the amount in controversy is only $275. It was not the purpose of the Interstate Commerce Act to give the United States Courts jurisdiction of cases of this sort where the amount in controversy is less than $2,000. If, therefore, the State Court is without jurisdiction to hear the matter, the plaintiff is without remedy, and manifestly it was not the purpose of the amendment to leave the plaintiff remediless."

None of the cases decided previous to the passage of the amendment are applicable," although cited by those who contend that the state courts have no jurisdiction.10 This is not a penal statute, and it only provides a new remedy, which had not heretofore existed. It is evident that the state courts have jurisdiction of actions arising under this amendment, and concurrent jurisdiction with the federal courts when the amount involved is over $2,000, or where there is a diversity of citizenship; and under no circumstances has the Interstate Commerce Commission any power or jurisdiction for the enforcement of this amendment.

As stated by one text-writer:11 "This is a law that may be enforced either in the state or federal courts. This is true because there is nothing in the law which makes the exercise of jurisdiction by state courts incompatible with the purpose of the clause; and it cannot be implied that Congress has given the federal courts exclusive jurisdiction over suits for damages arising out of a breach of contract to transport goods from one state to another, merely because it passed a law making the initial carrier liable for the acts of its agents to whom it delivered the goods."12

(9) Such as (1904) Rwy. Co. v. Moore, 98 Texas 302; but see (1909) G. H. & S. A. R. Co. V. Piper (Texas) 115 S. W. 107. (10) (1909) 1 Drinker merce Act, p. 456.

on

Interstate Com

(11) (1910) Watkins on Shippers & Carriers, Sec. 201, p. 268.

(12) See, also, the following cases affirming the jurisdiction of the state courts; (1909) So. Pac. Co. v. Crenshaw, 5 Ga. App. 675; 63 S. E.

III. The Constitutionality of the Act.The amendment to the Act has been subjected to most careful scrutiny by all the courts which have applied it with reference. to its constitutionality, and the conclusion is, that the power in the federal legislature to pass such an Act is contained in the commerce clause of the Constitution,1 which authorizes Congress to regulate commerce between the states and territories.

17

13

14

It does not infringe state sovereignty,1 it does not interfere in any manner with the rights of the states,15 it does not operate to take private property for public purposes,16 it does not interfere with the liberty of contract, or the freedom thereof,18 it does not deny to a carrier the equal protection of the laws,19 it is not a taking of the carrier's property without due process of law,20 and it is not depriving a common carrier of life or liberty or property without due process of law.21

865; (1909) L. & N. R. Co. v. Warfield & Lee, 6 Ga. App. 550; 65 S. E. 308; (1910) H. & T. C. R. Co v Lewis, (Texas) 129 S. W. 594; (1909) Smeltzer v. St. L. & S. F. R. Co. (Ark.) 168 Fed. 420; (1910) St. L. & S. F. R. Co. v. Heyser, (Ark.) 130 S. W. 562; (1910 Shultz v. S. R. Co.,, 122′ N. Y. S. 445; 66 Misc. R. 9; (1908) G. H. & S. A. R. Co. v. Piper, (Texas) 115 S. W. 107.

(13) Subdivision 3, section 8, article 1. This amendment is constitutional; Atlantic C. L. R. Co. v. Riverside Mills, 31 Sup. Ct. 164; 72 Cent. L. J. 129.

(14) (1909) G. H. & S. A. R. Co. v. Wallace, (Texas) 117 S. W. 169.

(15) (1909) G. H. & S. A. R. Co. v. Piper, (Texas) 115 S. W. 107.

(16) (1909) L. & N. R. Co. v. Scott, 133 Ky. 724; 118 S. W. 990; (1910) H. & T. C. R. Co. v. Lewis, (Texas), 129 S. W. 594; see obiter dictum contra in (1909) N. & W. R. Co. v. Stuart, (Va.) 63 S. E. 415; which is relied on in (1909) 1 Drinker on Interstate Commerce Act, sec. 261. (17) (1908) Smeltzer v. St. L. & S. F. R. Co. (Ark.) 158 Fed. 649; (1910) St. L. & S. F. R. Co. v. Heyser, (Ark.) 130 S. W. 563.

(18) (1910) Welch v. N. & W. R. Co., 121 N. Y. S. 985.

(19) (1909) G. H. & S. A. R. Co. v. Wallace, (Texas), 117 S. W. 169.

(20) (1908) Smeltzer v. St. L. & S .F. R. Co., (Ark.), 158 Fed. 649; (1909) G. H. & S. A. R. Co. v. Wallace, (Texas), 117 S. W. 169; (1910) Welch v. N. & W. R. Co., 121 N. Y. S. 985; (1909) Riverside Mills v. At. C. L. R. Co. (Ga.) 168 Fed. 987; (1910) St. L. & S. F. R. Co. v. Heyser, (Ark.), 130 S. W. 563.

(21) (1909) G. H. & S. A. R. Co. v. Piper, (Texas), 115 S. W. 107; (1910) M. K. & T. R. Co v. Harriman, (Texas), 128 S. W. 932; see obiter dictum contra in (1909) N. & W R. Co. v. Stuart, (Va.), 63 S. E. 415; which is relied on in (1909) 1 Drinker on Interstate Commerce Act, sec. 261.

The Act,has been held constitutional by all the courts before whom the question of its constitutionality has arisen, and its validity has been repeatedly affirmed in the decisions above referred to.22

IV. Limitation of Liability. The constitutional validity of the amendment being conceded, as heretofore shown, the next question that arises is, has the carrier any right to limit its liability by contract for a valuable consideration?

Limitation of liability divides itself into two heads:

First: Limitation as to the place where the negligence occurs, and which carrier shall be primarily liable for such negligence, and

Second: Limitation of liability as to the value of the shipment, and what is reasonable notice of the loss thereof.

As to the first question; the principal and only purpose of this enactment, being to place the liability on the initial or receiving carrier, it is established by the authorities that since the passage of the Act, no carrier receiving an interstate shipment has the right or power to limit its liability to its own line by any "contract, receipt, rule or regulation," whether based on a valuable consideration or not, and any such contract is void. This also applies to an intermediate carrier,23 and a connecting carrier.24 It is evident if such a contract was permissible, the very purpose and intention of the Act would be frustrated, and this beneficial legislation would go for naught. The common law rule was, that the initial carrier was liable for its own negligence on its own line, or that of its connections, and it was only by reason of the exceptions grafted upon it by the American courts that the initial carrier has been able to escape liability by contract, so that, under this amendment, the initial or connecting carriers cannot by contract, etc., limit their liability to their own line.

The second question presents more difficulty, and only by considering the state of the law prior to the passage of this amendment, can we arrive at a clear understanding of it.

"While there are some cases to the contrary, it is almost universally held that a carrier cannot exempt himself by contract from liability for his own negligence. But many of the same courts which lay down this principle in its broadest form, at the same time hold that a carrier may by agreement avoid a portion of his liability but not all of it. This result is arrived at by holding that the parties to the contract of carriage may agree upon the valuation to be placed upon the goods carried, and since the freight rate is dependent upon the valuation, agreement for a diminished valuation is supported by the consideration of a reduced rate. Such is the holding of the United States Supreme Court in the leading case of Hart v. Penna. R. Co., 112 U. S. 331.'

1725

The majority of the American courts. have followed the rule of the Supreme Court of the United States, and at this late day it would be futile to question its sound

ness.

26

Congress did not intend by this amendment to change the state of the law with reference to limitation of liability as to value or negligence, and this is shown in this case by the fact that the only thing under consideration was the question of fixing the liability on the initial carrier when a loss did occur, whether the negligence happened on its line or that of its connections.

This conclusion is irresistible from the language of Senator Richardson, of Alabama (quoted above), and also from the decisions since the passage of the Act; and is in accordance with the views of the Interstate Commerce Commission.27

The question is answered in a late case, decided by the Court of Appeals of New

(25) 8 Michigan Law Review, p. 223. (26) (1910) St. L. S. W. R. Co. v. Ray, (Texas), 127 S. W. 281.

(27) (1908) Matter of Released Rates, 13 Interst. Com. R. 550.

York,28 wherein it was attempted to have declared nugatory the provision in the receipt of the Adams Express Company, whose liability, because of a special rate, was limited to the sum of fifty dollars. the lower court, it was decided that this amendment to the Interstate Commerce Act rendered this provision of the receipt void,29 but it was reversed on appeal to the supreme court of that state, 30 and the supreme court's decision was affirmed on appeal in the court of appeals.31 The decision of the supreme court has been cited with approval by the courts of New Jersey-32 and Masssachusetts and the same reasoning for their conclusion is employed.

Mr. Justice Barlett, in his decision in the Court of Appeals,34 says: "The language of the enactment does not disclose any intent to abrogate the right to common carriers to regulate their charges for carriage by the value of the goods, or to agree with the shipper upon a valuation of the property carried."

Some of the opinions in other courts seem to reach a different conclusion, but an examination of them discloses that they were not dealing with the precise question here involved, but other questions arising under the Act, and therefor their weight on this point is open to serious question.35

The carrier, also, by contract may stipulate that the shipper shall give notice within a certain reasonable time of any claim (28) (1910) Greenwald v. Barrett, 199 N. Y.

170; 92 N. E. 218.

(29) (1908) Greenwald v. Weir, 111 N. Y. S. 235; 59 Misc. R. 431.

(30) (1909) Greenwald v. Weir, 115 N. Y. S. 311; 130 App. Div. 696.

(31) (1910) Greenwald v. Barrett, 199 N. Y. 170; 92 N. E. 218.

(32) (1909) Travis v. Wells, Fargo & Co. (N. J.) 74 Atl. 444; (1909) Flowman v. Childs, (N. J.) 74 Atl. 446.

(33) (1910) Bernard (Mass.), 91 N. E. 325.

(34) (1910) Greenwald v. Barrett, 199 N. Y. 170; 92 N. E. 218; this decision overrules the following cases; (1909) Silverman v. Weir, 114 N. Y. S. 6; (1908) Schulte v. Weir, 111 N. Y. S. 240; 59 Misc. R. 438; (1909) Vigouroux v. Platt, 115 N. Y. S. 880; 62 Misc. R. 364.

(35) (1909) L. & N. R. Co. v. Warfield & Lee, 6 Ga. App. 550; 65 S. E. 308; (1909) Holland v. C. R. I. & P. R. Co., 139 Mo. App 702; 123 S. W. 987; (1909) Blackmer v. M. & O. R. Co., 137 Mo. App. 479; 119 S. W. 1; (1909) K. C. S. R. Co. v. Carl, 91 Ark. 97; 121 S. W. 932: (1909) C. R. I. & P. R. Co. v. Miles, (Ark.), 123 S. W. 775.

Therefore it may be safely concluded, that under a contract, supported by a valuable consideration, such as a bona fide reduced rate, etc., the carrier has a right to require the shipper to accept a reduction in the maximum liability for the shipment, and to give a reasonable notice of the claim for damages; and the weight of authority of courts deserving the greatest respect is in that direction.

V. General Application.-In the introduction, it was stated, that the Act had no application, except to shipments in interstate commerce; accordingly, no shipments. in intrastate commerce are affected by any of its provisions. Some of the states, however, have statutes or a provision in their Constitution, regulating intrastate shipments. The rules of practice and procedure when the statute applies are similar to that employed in the state courts in like cases.

38

The statute does not have to be specially pleaded as the state courts take judicial notice of the public statutes of the United States.39 It is, however, necessary to set forth in the declaration, the fact that the shipment arises out of interstate commerce, and this can be done by alleging the point of receipt by the initial carrier and the destination of the shipment.

The provisions of the Act do not affect "any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law," and the shipper in interstate commerce has his election whether to proceed under the Act, or to waive the provisions thereof, and proceed under the law as it was pronounced prior to this enactment. This saving clause is particularly beneficial in those states which have

40

(36) (1909) St. L. I. M. & S. R. Co. v. Furlow, 89 Ark. 404; 117 S. W. 517; (1909) St. L. & S. F. R. Co. v. Keller, (Ark.), 119 S. W. 254. See Georgia Code, 1895, sec. 2298. (1909) Latta v. C., St. P., M. & O. R. Co., (Neb.), 172 Fed. 850; (1909) L. & N. R. Co. v. Scott, 133 Ky. 724; 118 S. W. 990.

(37)

(38)

(39) (1909) L. & N. R. Co. v. Scott, 133 Ky. 724; 118 S. W. 990.

Negligence must have occurred on the line of the initial carrier or on the line of one of its connections in the through shipment, whether intermediate or delivering, and the Act has no application when once the shipment has been completed and the delivering carrier has assumed the liability of a warehouseman.42

The fact that the receiving carrier's line is wholly within the state does not relieve it from liability in every case under the Act, and if the shipment is accepted by the intrastate carrier for a point outside of the state, and a through bill of lading issued, the Act applies.**

It has, also, been decided that under the provisions of sections eight and nine of the Interstate Commerce Act of February 4, 1887, and since this amendment, when a verdict is rendered against the carrier, and in favor of the shipper, the attorney for the shipper is entitled to a counsel fee,45 but that decision is erroneous, because the section which provides for a counsel fee, also includes a fine to be imposed upon the carrier for the violation of its provisions. The court which awarded the fee is one of respectable authority, but its decision is clearly a misconception of the purpose and intention of this amendment.46

The Act took effect on the dates of its passage, to-wit: June 20, 1906, and all interstate shipments made since that time. come within its provisions.

47

Conclusion. This amendment is of great value to shippers, as in a great many cases where an interstate shipment was involved,

(41) See note 37. (42) See note 38.

(43) (1909) N. & W. R. Co. v. Stuart, (Va.), 63 S. E. 415.

(44) (1910) Schultz v. S. R. Co., 122 N. Y. S. 445; 66 Misc. R. 9; (1910) H. & T. C. R. Co. v. Lewis, (Texas), 129 S. W. 594.

(45) (1909) Riverside Mills v. At. C. L. R. Co., (Ga.), 168 Fed. 990.

(46) See criticism in (1908) G. H. & S. A. R. Co. v. Piper, (Texas), 115 S. W. 107; (1910 Watkins on Shippers & Carriers, p. 267, and see 31 Sup. Ct. 164.

(47) (1910) So. Pac. Co. v. Meadors, (Texas), 129 S. W. 170; (1910) Barnes on Interstate Transportation, p. 492, Note 1; see contra (1908) Nicola v. V. L. & N. R. Co., 14 Interst. Com. R. 199.

small, they were without remedy, because of the expense which would be entailed upon them together with the loss of time, in bringing suit in a foreign forum. The trend of the decisions has demonstrated that the courts are willing and ready to administer the provisions of this legislation with liberality, and, also, with a desire to do justice between the parties.48

Baltimore, Md.

JACOB S. NEW.

(48) Additional authorities under the Act, but which merely refer to it, without special comment, are as follows: (1908) M. K. & T. R. Co. v. Carpenter, (Texas) 114 S. W. 900; (1908) I. & G. N. R. Co. v. Wilbourne, (Texas), 115 S. W. 111; (1909) St. L. S. W. R. Co. v. Grayson, 89 Ark. 154; 115 S. W. 933.

TROVER AND CONVERSION-MEASURE OF

DAMAGES.

HENDERSON v. HOLLAND.

Appellate Court of Alabama, April 19, 1911.

55 So. 323.

It is discretionary with the jury, having regard to the circumstances, to assess the damages in trover at the highest market value of the article at any time between the conversion and the trial, or at an amount not less than its value at the date of the conversion, with interest, or at any amount within such limits; so that they should not be instructed that plaintiff is entitled to such highest price.

Plea 2 is as follows: "Now comes the defendant, and for answer to the complaint pleads and says: That the title to this bale of cotton, the subject of this suit, has heretofore been tried in the justice court of M. W. Coleman, a justice of the peace at Albertville, Marshall county, a court of the same jurisdiction as this court; that said suit was between the same plaintiff and defendant, that the suit was brought by plaintiff against the Albertville Mercantile Company for the same bale of cotton or its value, and the said bale of cotton having been sold by this defendant to the Albertville Mercantile Company, the said company called on the defendant, J. J. Henderson, from whom they bought said bale of cotton, to defend his title or claim to said cotton for them; and this defendant thereupon made himself defendant in said suit, went into trial on the merits of the case, and the plaintiff and the defendant offered evidence in support of their respective claims, and the court, after

hearing the evidence and the argument, considered the case, and found judgment in favor of the defendant under the law and evidence offered by the party, which judgment is duly rendered upon the merits of the case, and no appeal was taken from said judgment; and the defendant says that plaintiff is bound or concluded by the former judgment of the process." Amended plea 2 sets out the fact that the trial was had on the 5th day of December, 1908, in an action of trover in the justice court of M. W. Coleman, a justice of the peace in Marshall county, a court of competent jurisdiction, and then states the facts as stated in the former suit, with the conclusion that defendant avers that this suit is for the conversion for the same bale of cotton, and the evidence on this trial and the issues here involved will, under the first plea here filed, be the same as was heard in the court of said Coleman.

E. W. Dardem, for appellant. T. B. Rus sell, for appellee.

WALKER, P. J. (1) The appellant, defendant below, by two special pleas-his second plea, and his second amended pleasought to set up as an adjudication against the claim of the plaintiff asserted in this suit the result of a previous suit

brought.

by the same plaintif against the Albertville Mercantile Company; each of the pleas alleging in substance that the defendant, who had sold the bale of cotton in controversy to the Albertville Mercantile Company, took charge of and conducted the defense in that suit as though it had been brought against himself, and that judgment was rendered in that case in favor of the defendant therein. Assuming that the pleas show that defendant so conducted himself with the defense of that former suit as to be entitled to claim for himself the benefit of the judgment therein, yet it must be held that neither of the pleas shows that the result in that case was an adjudication against the claim asserted by the plaintiff in this suit. The averments of the second plea indicate that the former suit was an action of detinue for the bale of cotton. The second amended plea describes the former suit as an action for the conversion of the bale of cotton. The first mentioned plea does not negative the conclusion that judgment was rendered for the defendant because of a failure to prove possession of the cotton by the defendant in the suit; and the second mentioned plea does not negative the conclusion that there was judgment for defendant in that suit because of a failure to prove a taking or conversion by it of the cotton in question.

For anything that appears in either of those pleas, that former judgment against the plaintiff may have been the result of his failure to prove a fact necessary to be prov ed to entitle him to judgment in that case, but which he is not required to establish in this suit against another party, though this suit relates to the same personal property which was the subject of controversy in the former suit. At any rate, neither those special pleas shows an adjudication against plaintiff's claim or title to the bale of cotton mentioned in this suit; and there was no error in sustaining the demurrers to the pleas. Gilbreath v. Jones, 66 Ala. 129.

of

(2) There was evidence as to the highest market price of cotton between the time of the alleged conversion and the date of the trial. In the oral charge to the jury the trial court instructed them that "under the law, if the plaintiff, is entitled to recover at all, he is entitled to the highest market price for the cotton since the day it was taken to the present time," and the defendant duly excepted to this part of the charge. In actions for the conversion of personal property which is of a fluctuating value, it is competent to prove the highest market price of the article at any time between the date of conversion and the time of the trial; but it is discretionary with the jury to assess the damages of the plaintiff at a sum based on the highest market price, or on a. price not less than the value of the article at the date of the conversion, with interest' on the amount so ascertained. Boutwell et al. v. Parker & Co., 124 Ala. 341, 27 South. 309; Burks v. Hubbard, 69 Ala. 379; Loeb & Bro. v. Flass Bros., 65 Ala. 526. In such case the law vests the jury with a discretion in assessing the damages at any amount within the limits stated. In the exercise. of that discretion they should have regard to the circumstances of the case before them. The conversion proved may have been inadvertent, and the defendant may not have reaped benefit from it beyond the market price of the article; or it may have been willful or wanton, and have been the means of enabling the defendant to get for himself the highest market price for the property of another, or of depriving the owner of the benefit of a rise in price. It is to enable them to adjust their assessment of damages to such varying situations that the jury is accorded a discretionary power in this matter. The right to exercise such discretion was denied them by the instruction above quoted. That action of the trial court was

erroneous.