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establish the correctness of the ruling below if they are considered, yet they are not subject to be so considered because the challenge to the jurisdiction was waived by the proceedings which were taken to question it. Generically this would seem to rest upon the proposition that because there was a special appearance on the face of the summons and complaint challenging the jurisdiction, thereby the right to so challenge was waived. But the contrary has been so long established and is so elementary that the proposition need be no further noticed.

Although this be true, the argument further is that the right to be heard on the challenge to the jurisdiction was lost because of the postponement of the hearing on that subject which was granted. This, however, in a different form but embodies the error involved in the proposition just disposed of. But aside from this, as the continuance was granted at the request of the plaintiff and for the purpose of enabling him to be fully heard on the subject of jurisdiction, no further reference to the proposition is required. Again, it is urged that because as a condition of the continuance the court reserved the right of the defendant to plead to the merits if on the hearing jurisdiction was found to exist, therefore the question of jurisdiction was waived,—a conclusion which is again too obviously wrong to require more than statement to refute it. Moreover, it is insisted that as the order directing the plaintiff to amend so as to fully disclose citizenship before the day for the hearing on the motion as to jurisdiction was an exercise of jurisdiction resulting from some suggestion of the defendant, therefore the question of jurisdiction was not open. But this disregards the fact that the order in question was expressly made by the court doubtless in the discharge of its duty to see to it that from no point of view was its jurisdiction abused.

Finally, it is said that as under the local law the right to challenge the summons and the jurisdiction resting

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on it could only have been raised by demurrer, therefore under the Conformity Act (§ 914, Rev. Stats.) the motion to quash the summons could not be entertained and on the contrary should have been disregarded. We do not stop to discuss the proposition since it is too clear for discussion that its want of merit is foreclosed by previous decisions of this court which have recognized and upheld the practice of challenging the jurisdiction under circumstances like those here present by way of motion to quash instead of by demurrer. Goldey v. Morning News, 156 U. S. 518; Wabash Western Railway v. Brow, 164 U. S. 271; St. Louis Southwestern Ry. Co. v. Alexander, 227 U. S. 218.





No. 248. Argued April 30, 1917. Decided May 21, 1917.

Concurrent findings of state trial and appellate courts as to the fact. of negligence will not be overturned by this court in the absence of clear error. Baltimore & Ohio R. R. Co. v. Whitacre, 242 U. S. 169. A carrier's printed form of contract for interstate transportation of livestock, plainly intending to adjust the rates in each case proportionately to valuations to be made by the shipper which should limit the carrier's liability, specified minimum or primary valuations for various kinds of animals with corresponding tariff rates and left blanks for insertion of the shipper's valuations connected with the statement that the same were declared by the shipper in order to avail himself of the alternative rates. In a case where the blanks for valuations by the shipper were left unfilled at execution but the rate charged and inserted in the contract was in accordance with the carrier's tariff as applied to the primary valuations, Held that these

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were the valuations adopted by the parties and that the carrier's liability was limited accordingly.

Failure to post rates which are duly made out and filed with the Interstate Commerce Commission does not affect their validity or the duty of a shipper to take notice of them.

A clause in a carrier's merchandise rate schedules providing that rates there must not be applied to livestock shipments, construed as intended to leave the provisions of the livestock schedule concerning rates and valuations for independent interpretation uninfluenced by provisions in the merchandise schedules.

The effect of a contract made and signed by a shipper in lawful accord with established rate sheets may not be avoided by the suggestion that through neglect or inattention he did not read it.

250 Pa. St. 527, reversed.

THE case is stated in the opinion.

Mr. Charles F. Patterson, with whom Mr. Francis R. Harbison was on the brief, for plaintiff in error.

Mr. W. Pitt Gifford for defendant in error.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

The subject-matter of this suit is the liability, if any, of the plaintiff in error, the Express Company, for the failure to safely deliver a colt which was entrusted to it by the agent of the defendant in error at Milwaukee, Wisconsin, for transportation to Erie, Pennsylvania, and if there was any liability, the amount thereof. The controversy is here to review the action of the court below in affirming a judgment of the trial court rendered on a verdict of a jury finding that there was liability and fixing the amount at $1,916.70. 250 Pa. St. 527. Jurisdiction to review rests upon the interstate commerce character of the shipment involving various alleged misconstructions of the Act to Regulate Commerce and conse

Opinion of the Court.

244 U. S.

quent deprivation of federal rights asserted to have arisen from the course of the trial in the court of first instance as also from the action of the court below in affirming. These contentions in the courts below concerned both the existence of liability and, if any, the amount. As the result, however, of the conclusion of both courts as to the fact of negligence and the absence of any ground for clear conviction of error on the subject (Great Northern Ry. Co. v. Knapp, 24Q U. S. 464, 466; Baltimore & Ohio R. R. Co. v. Whitacre, 242 U. S. 169), as well as because of the limitations resulting from the errors assigned and relied upon, the question of liability may be put out of view, thus reducing the case to a question of the amount, and that turns on whether there was a limitation of liability and the right to make it.

The printed form of contract (express receipt) which was declared on and made a part of the complaint contained a caption under a title "Notice to Shippers" directing their attention to the fact that they must value their property to be shipped and that the charges for transportation and the sum of recovery in case of loss would be based upon valuation. The contract itself was entitled "Limited Liability Live Stock Contract." Its first clause described the carriage which was to be provided for with appropriate blanks to enable the insertion of the livestock which it covered and the rate to be paid for the service with a proviso that the charge was based upon valuation fixed by the shipper. The second clause stated a demand by the shipper for rates to be charged for the carriage and that he was offered "by said Express Company alternative rates proportioned to the value of such animals, such value to be fixed and declared by the shipper, and according to the following tariff of charges, viz:" This was followed by clause 3 which contained enumerations of various classes of animals fixing a primary valuation for each class, for instance: "For $100."


244 U. S.


Opinion of the Court.


"For The fourth and fifth clauses provided that after ascertaining the rate to be charged for all classes of animals embraced in clause 3 by applying to those classes the rate provided by the tariff sheets filed according to law with the Interstate Commerce Commission, there should be added to such rate a stated percentage of the amount by which the declared valuation of the shipper exceeded the primary valuation fixed by the terms of clause 3. The fifth clause also concluded with the declaration that the shipper, in order to avail himself of the alternative rates, had declared a value as follows, and contained blanks for the insertion of said valuation.

There was filled in this blank contract, as signed by the parties and as sued on, in the first clause a statement of the animals shipped, a mare and colt, and of the rate, $75. In the third clause containing the enumeration of classes, in the class as to horses valued at $100 there was written "$100" and in the class as to colts valued at $50 there was written "$50." There was no filling of the blank at the end of the fifth clause stating the owner's valuation and that space therefore remained vacant.

There was evidence tending to show that the shipper was experienced in shipping horses and was informed of the right to value and that the rate as well as the recovery would depend upon valuation. Evidence was also admitted over objection of the company tending to show that the shipper was unaware of the valuation clauses and that he signed the contract without reading it. There was further evidence that on the contrary the shipper was fully informed by the agent and declared his purpose to fix the primary valuation and not to exceed it. In addition, evidence was tendered by the defendant which was rejected and objection reserved, tending to show that in consequence of the desire of the shipper not to change the primary valuation, that is to adopt the same, the figures

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