Nall v. Wabash, St. L. & P. Ry. Co.
| Decision Date | 04 February 1889 |
| Citation | 10 S.W. 610,97 Mo. 68 |
| Court | Missouri Supreme Court |
| Parties | NALL v. WABASH, ST. L. & P. RY. Co. |
A petition alleged that defendant, a railway company, received and agreed to carry plaintiff's goods to a given point, but lost them; the action being based on common-law liability, and not on Rev St. Mo. § 598, allowing a recovery against the carrier receiving the goods, if lost by the negligence of a connecting carrier, with a right of action over by the receiving carrier against the latter. The answer alleged the contract to be for the delivery of the goods at the terminus of defendant's line to a connecting railroad, of which it averred performance. The court, trying the case without a jury, rendered judgment for plaintiff for less than $100, but upon what ground did not appear. No instructions were asked or given referring to any federal question, and the motion for a new trial was made on several grounds, one being that the statute on which the court based its finding was unconstitutional, and interfered with commerce between citizens of different states. Held, that no federal question was presented, and that the supreme court had no jurisdiction.
Appeal from circuit court, Macon county; ANDREW ELLISON, Judge.
Action by J. M. Nall against the Wabash, St. Louis & Pacific Railway Company, to recover for the loss of certain freight delivered to defendant by plaintiff for transportation. Trial by the court, judgment for plaintiff for $81.66, and defendant appeals; the record being first sent to the Kansas City court of appeals, and thence, on the motion of defendant, transferred to the supreme court, on the ground that a federal question was involved. Rev. St. Mo. § 598, provides that a common carrier shall be liable to the consignor for loss of or injury to goods received for transportation, though it occurs through the fault of another carrier through whose hands it passes, and that the former carrier may maintain an action against the latter for what it may be required to pay by reason of its negligence.
W. H. Blodgett and Geo. S. Grover, for appellant. Matthews & Spencer, for respondent.
This cause was appealed from the Macon circuit court, and the record sent to the Kansas City court of appeals, where, upon motion of defendant, the cause was transferred to this court, for the alleged reason "that the issues in said cause involved a construction of the federal constitution." Whether that be so or not depends upon the proper construction of the pleading in the cause.
The petition is as follows: Plaintiff states and alleges that on the 26th day of February, 1883, he owned certain goods and chattels, to-wit, one cook stove and one box of household goods; that the defendant is a railroad corporation, under the laws of the state of Missouri, and a common carrier of persons, goods, and merchandise, and was such at the time the said corporation under-took to ship and carry the property and goods of plaintiff, hereinafter mentioned; that on the 26th day of February, 1883, the defendant owned and operated a railroad, known as the "Wabash, St. Louis & Pacific Railway," running through the city of Macon, upon which road the defendant ran and operated its engines and cars, and transported and carried goods, wares, and merchandise as a common carrier; that on said 26th day of February, 1883, the plaintiff delivered to the defendant one cook stove and one box of household goods, in good condition, for transportation from the city of Macon, aforesaid, to Corinth, Ky.; that plaintiff paid them the price demanded for carrying said goods, to-wit, $7.70; and that in consideration of said price, paid as aforesaid, the defendant, as such common carrier, undertook and agreed to carry and transport said goods from the city of Macon to Corinth, Ky., and deliver the same in like good order, within a reasonable time. Plaintiff states that defendant has failed to perform its undertaking as such common carrier, and has failed to deliver said goods, as aforesaid, at said point of delivery, and the same have been a loss to this plaintiff of the whole thereof; that the value of said goods was $100, and plaintiff has been damaged by reason of the premises in the full value thereof; and he therefore asks judgment for the same, with costs of this action.
The answer of defendant was as follows: (1) It admitted that it was a railroad corporation under the laws of the state of Missouri; (2) that on the 26th day of February, 1883, it owned and operated a railroad known as the "Wabash, St. Louis & Pacific Railway," running from and through the city of Macon; (3) it denied each and every other allegation in plaintiff's petition. For further answer, it averred that it received from one J. M. Nall, at Macon City, Mo., on or about the 26th day of February, 1883, one box, said to contain certain household goods, and one cook stove, marked "J. M. Nall, Corinth, Ky.," to be transported by it to St. Louis, Mo., and there delivered to a connecting line, for the consideration named, and only upon the terms and conditions stated in a certain special printed and written contract or bill of lading, then and there executed by it, and delivered to said J. M. Nall; which special contract or bill of lading was in words and figures as follows, to-wit:
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