15 S.W. 761 (Mo. 1891), Dimmitt v. The Kansas City, St. Joseph and Council Bluffs Railroad Company

Citation:15 S.W. 761, 103 Mo. 433
Opinion Judge:Brace, J.
Party Name:Dimmitt v. The Kansas City, St. Joseph and Council Bluffs Railroad Company, Appellant
Attorney:Strong & Mosman for appellant. Ramey & Brown for respondent.
Judge Panel:Brace, J. Sherwood, C. J., Black and Barclay, JJ., concur.
Case Date:March 09, 1891
Court:Supreme Court of Missouri

Page 761

15 S.W. 761 (Mo. 1891)

103 Mo. 433

Dimmitt

v.

The Kansas City, St. Joseph and Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, First Division

March 9, 1891

October, 1890

Appeal from Buchanan Circuit Court. -- Hon. Jos. P. Grubb, Judge.

Affirmed.

Strong & Mosman for appellant.

(1) A station agent has no power to bind the company by a contract for transportation to points beyond its own line, and a contract of that nature entered into by him is void. Grover v. Baker, 70 Mo. 672; Turner v. Railroad, 20 Mo.App. 632. (2) The defendant's first instruction should have been given. A recovery against the defendant could not be sustained save upon proof that, first, there had been negligence on the part of the Chicago & Northwestern Company, and, second, that the loss of said box was the result of such negligence. There was not a scintilla of proof of either of these prerequisites to a recovery. (3) A contract whereby the liability of the company is sought to be extended, so as to make the receiving carrier responsible for the goods while the same are in transit over another distinct and independent line, "will not be inferred from loose and doubtful expressions, but must be established by clear and satisfactory evidence. Even the taking of through fare on the receipt of the cattle does not establish such liability." Myrick v. Railroad, 107 U.S. 102; Nutting v. Railroad, 1 Gray, 502; Goldsmith v. Railroad, 12 Mo.App. 484; Orr v. Railroad, 21 Mo.App. 336. (4) "Receiving goods marked or directed to some point beyond their regular route is not sufficient evidence of an implied contract to carry them to that place." Coates v. Railroad, 45 Mo. 238; Pendergast v. Express Co., 101 Mass. 120; Crawford v. Railroad, 51 Miss. 222; Ins. Co. v. Railroad, 104 U.S. 158; Hoagland v. Railroad, 39 Mo. 451. No such contract or agreement as that alleged in the petition was attempted to be shown in evidence. (5) Nor is the foregoing doctrine changed by the provisions of Revised Statutes, 1879, section 598. None of these duties which the common law casts on a carrier were altered or changed by this statute. First. Because "statutes in derogation of the common law are to receive such a construction as not to allow them to infringe upon the rules and principles of the common law to any greater extent than is plainly expressed." State v. Clinton, 67 Mo. 380. Because "laws that give origin to new and unexpected departures from general rules should be closely scrutinized, and the powers therein strictly construed." Smith v. Haworth, 53 Mo. 88; Yankee v. Thompson, 51 Mo. 234. Second. Because it will not be presumed that the legislature intended to authorize a proceeding unreasonable in itself, unless the intention is indicated in express terms. Neenan v. Smith, 50 Mo. 525. Third. A leading maxim in the interpretation of statutes is to reject an interpretation which leads to consequences which it would be disrespectful to the legislature to suppose were designed. Conner v. Railroad, 59 Mo. 285. Fourth. A proper construction of this statute limits its operation to this state. Presumably, the legislature knew that it could legislate for the state of Missouri only; that its laws could not have any extra territorial force; and, presumably, they did not intend that this enactment should apply to interstate shipments. This is supported by the literal words of the statute. Where a statute can be construed consistently with the literal meaning of the words used, the courts will not give it any other construction. Hicks v. Jamison, 10 Mo.App. 35; Fitzpatrick v. Gebhart, 7 Kan. 47. Fifth. Because the statutes of Missouri can have no extra territorial force. Railroad v. Thompson, 31 Kan. 193; Vawter v. Railroad, 84 Mo. 679 and 65 Mo. 349. The law is, and always has been, that in a shipping contract "the place of delivery is a material and important part of the contract, and no reason exists why a failure to deliver should not be controlled by the laws which prevail at the place of delivery." Curtis v. Railroad, 74 N.Y. 116; Stix v. Mathews, 69 Mo. 37; Roach v. Foundry, 21 Mo.App. 118. The attempt in the statute to give a right of action in favor of the Missouri carrier against the negligent carrier in another state is mere brutum fulmen, for no such liability could be enforced. Warren v. Mayor, 2 Gray, 84; Allen v. Louisiana, 103 U.S. 83 and 84. (6) It is not within the constitutional competency of the legislature to cast upon one person, who is without the suspicion of fault or neglect, a liability for the default, negligence and miscarriage of one with whom he has no contractual relations. Railroad v. Lackey, 78 Ill. 55. (7) Said act, as construed by the court, is unconstitutional, because it is, in effect, a regulation of interstate commerce. Henderson v. New York, 82 U.S. 259; Railroad v. Commissioners, 19 F. 679, 708; Carton v. Railroad, 59 Ia. 148; Railroad v. Council Bluffs, 45 Ia. 338; Pickard v. Pullman, 117 U.S. 34; Chy Lung v. Freeman, 92 U.S. 275; Hall v. DeCuir, 95 U.S. 487. (8) Laws which limit one in his choice of trade and profession, or confine him to work or live in a specified locality, or exclude him from his own house, or restrain his otherwise lawful movements, are infringements upon his fundamental rights of liberty, which are under constitutional protection. In the Matter of Jacobs, 98 N.Y. 98; Butchers' Union Cases, 111 U.S. 765; In re Sam Kee, 31 F. 680; In re Quong Woo, 31 F. 232; Laundry Cases, 26 F. 611.

Ramey & Brown for respondent.

(1) The statute relied on, according to a fundamental rule of construction, must be permitted to have some effect in some supposable case. If the appellant's position, that it is only operative in cases where the goods are received under a contract to carry them over the connecting line, be true, then the statute becomes wholly inoperative, because in that case the carrier receiving the goods becomes liable, under the terms of his contract, not only for loss occurring through the negligence of the connecting carrier, but is an insurer of the goods over the connecting line as well as its own. So that to give the statute any effect we must apply it to those cases in which the...

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