Conley v. Chicago, B. & Q. R. Co.

• Decision Date: 21 February 1916
• Docket Number: No. 11354.,11354.
• Citation: 183 S.W. 1111,192 Mo. App. 534
• Parties: CONLEY v. CHICAGO, B. & Q. R. CO. et al.
• Court: Missouri Court of Appeals

183 S.W. 1111

192 Mo. App. 534

CONLEY v. CHICAGO, B. & Q. R. CO. et al.

No. 11354.

Kansas City Court of Appeals. Missouri.

February 21, 1916.

Rehearing Denied March 6, 1916.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by S. F. Conley, administrator of the estate of William H. Leonard, deceased, against the Chicago, Burlington & Quincy Railroad Company and the Wabash Railway Company. Verdict went for the first-named defendant and against the Wabash Railway Company, which was granted a new trial, and, from an order granting plaintiff a new trial against the Burlington Company, it appeals. Affirmed.

E. W. Hinton, of Chicago, Ill., and McBaine & Clark, of Columbia, for appellant. North T. Gentry, of Columbia, for respondent.

JOHNSON, J.

This suit was instituted in the circuit court of Boone county by W. H. Leonard, to recover damages for the breach of a contract for the transportation of a carload of horses from Unionville, Mo., via Moulton, Iowa, to the National Stockyards at East St. Louis, Ill. The defendant the Burlington Company was the initial carrier which issued the contract, carried the horses shipped from Unionville, thereunder, to Moulton, Iowa, and there delivered them in good order to the defendant Wabash Company, which completed the transportation to the National Stockyards at East St. Louis. The Burlington Company, at the request of Leonard, the shipper, wrote into the contract, "Stop at Centralia to fill," which meant that the Wabash Company should stop the car at Centralia, a station on its line, and give Leonard a reasonable opportunity to load eleven horses he was holding at that station for shipment to East St. Louis, and for which there was room in the car. An additional charge was made for this stop-over privilege. The Wabash Company negligently failed to stop the car at Centralia, and this suit is prosecuted against both carriers for compensation for the resulting loss. Before it was tried, Leonard was adjudged a bankrupt, and the cause was revived and continued in the name of H. H. Banks, his trustee in bankruptcy. He recovered a judgment in the circuit court against both defendants, but on their appeal we reversed the judgment and remanded the cause for error in the admission of certain oral evidence which tended to vary the terms of the shipping contract. Banks v. Railway, 153 Mo. App. 469, 134 S. W. 1071. The bankruptcy proceedings were terminated and the cause reverted to Leonard, the shipper, who afterwards died, and it was revived in the name of S. F. Conley, the administrator of his estate. At a subsequent trial, the court sustained the Burlington Company's demurrer to the evidence but submitted the case as to the Wabash. The jury returned a verdict for the Burlington, but against the Wabash, for $500. The court sustained the latter company's motion for a new trial, and also plaintiff's motion for a new trial from the judgment exonerating the Burlington. Plaintiff took no appeal from the order granting the Wabash a new trial, but the Burlington appealed from the order sustaining plaintiff's motion.

The petition clearly pleads a cause of action for breach of a through contract of affreightment from Unionville, Mo., to East St. Louis, Ill., and though it contained no express allegation that the cause was based upon the national laws relating to interstate shipments, and throughout the trial plaintiff appeared to be asserting a cause under the state laws predicated upon a joint contract of affreightment, the petition pleaded all the terms of the contract and the facts relating to the transportation which disclose beyond question, as does the evidence, that the subject-matter of the cause was the breach of an interstate contract for transportation from Unionville, Mo., to East St. Louis, Ill.

We have not overlooked the provision in the shipping contract that the Burlington was to carry the horses only from Unionville to Moulton, Iowa, and there deliver them to the Wabash for further transportation to East St. Louis; but, apart from other provisions and recitals which show that through transportation was intended, the very fact that the initial carrier received the horses for continuous transportation to East St. Louis, subject only to a stop-over privilege at Centralia, impressed upon the shipping contract the character of a through contract providing for interstate transportation. As we held in Bailey v. Railroad, 184 Mo. App. 457, 171 S. W. 44:

"The rule may be considered as firmly established that, when a commodity has been delivered to a common carrier to be transported on a continuous voyage or trip to a point beyond the limits of the state where delivered, the character of interstate or foreign commerce attaches thereto, and it is immaterial whether the shipment be made on a through bill of lading or upon a bill or bills issued for transportation between intrastate points. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 527 [31 Sup. Ct. 279, 55 L. Ed. 310]; Commission Co. v. Worthington, 225 U. S. 108 [32 Sup. Ct. 653, 56 L. Ed. 1004]; State v. Railway 71 S. W. 994; Railway v. Grain Co. [Tex. Civ. App.] 73 S. W. 845; Railway Com. v. Railroad, 229 U. S. 336 [33 Sup. Ct. 837, 57 L. Ed. 1215]."

Since this was an interstate shipment, plaintiff could have no cause of action against either the initial carrier or the connecting...