Western Sash & Door Co. v. Chicago, Rock Island & Pacific R. Co.
Citation | 76 S.W. 998,177 Mo. 641 |
Parties | WESTERN SASH & DOOR COMPANY v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
Decision Date | 17 November 1903 |
Court | United States State Supreme Court of Missouri |
Transferred from Kansas City Court of Appeals.
Affirmed.
W. F Evans and W. E. Clark for appellant.
(1) The law presumes, in the absence of evidence to the contrary that where freight is shipped over more than one road and at the time it reaches its destination is in a damaged condition, the damages occurred on the road of the last carrier. Flynn v. Railroad, 43 Mo.App. 439; Crouch v. Railroad, 42 Mo.App. 248; Lin v. Railroad, 10 Mo.App. 131; Hutchison on Carriers (1 Ed.), sec. 761, p. 589; 6 Am. and Eng. Ency. Law (2 Ed.), 652. (2) Under the contract in this case the liability of appellant ceased at its own line. By said contract appellant undertook to forward or transport the property only to the end of its own line, and it should not be liable for damages occurring beyond that point. Nines v. Railroad, 107 Mo. 478; Dimmitt v. Railroad, 103 Mo. 433; Miller G. & E. Co. v. Railroad, 138 Mo. 670; Bank v. Railroad, 72 Mo. 56; Patterson v. Railroad, 56 Mo.App. 657; Minter Bros. v. Railroad, 56 Mo.App. 290. (3) Section 944, Revised Statutes 1889, if applicable to an interstate shipment, is unconstitutional and void, as it is an attempt on the part of the State to regulate commerce between the states. U. S. Constitution, sec. 8, art. 1; U. S. R. S. secs. 52, 58; Railroad v. Illinois, 118 U.S. 557; Railroad v. Patterson, 169 U.S. 311; State v. Bunce, 65 Mo. 349; Vawter v. Railroad, 84 Mo. 679; Stanley v. Railroad, 100 Mo. 435.
Lathrop, Morrow, Fox & Moore for respondent.
(1) Defendant undertook to carry the goods to Blackwell, Oklahoma Territory. There was no contract that it should only carry over its own line. This action is bottomed on section 944, Revised Statutes 1889. The meaning of this section has been declared by the Supreme Court of this State and also by the Supreme Court of the United States, as well as by rulings of the Kansas City Court of Appeals; so that its meaning is no longer a question of doubt. The purpose of the statute was to regulate the form of contract of shipment. Railroad v. McCann, 174 U.S. 580. In the case at bar the receipt given by the defendant does not upon its face contain any contract for shipment solely over the line of the defendant. It is true it refers to "the rules and conditions printed on the regular shipping bills now in use by the company signing this receipt;" but this is wholly insufficient, since the contract to transport only over the line of defendant in order to be availing should have been contained "in the portion of the agreement reciting the contract to transport." It is sought here to do the thing prohibited in the case above cited. The appellant insists that the shipper should consult the defendant's printed rules and conditions on its regular shipping bills and by critical comparison of such conditions, with the contract of transportation, determine what is the true construction of the two papers taken together; but the statute relieves the shipper of "a critical comparison of clauses of the contract in order to reach a proper understanding of its meaning." It is said in Popham v. Barnard, 77 Mo.App. 628, that: "Receiving freight for shipment beyond his own line is prima facie an agreement to carry to that point, and it is necessary in order to escape liability that he should stipulate that he is only to carry on his own line." (2) The parties understood that the contract was one for through carriage. They so construed it by their conduct. The defendant regarded it as a through contract in giving it a through billing by virtue of the traffic arrangements between it and the Hutchinson & Southern, as well as by informing Mr. Vedder that the Rock Island "carried goods to Blackwell." Plaintiff understood that defendant was to assume the obligation for through transportation because its shipping clerk called up the defendant and asked if it carried goods to Blackwell, received an affirmative answer, and the goods were accordingly shipped on the strength of the statement. It is held that where a contract of this nature is ambiguous the acts of the parties may be ascertained to supply the ambiguity. It is also true that the construction which the parties themselves place upon a contract will govern where there is any ambiguity. Williams v. Railroad, 54 S.W. 689.
This action was commenced before a justice of the peace in Jackson county, September 28, 1898, by filing the following statement:
The case was tried in justice's court, October 14, 1898, taken under advisement, and judgment rendered in favor of plaintiff on October 17, 1898, and appealed to the circuit court on October 25, 1898.
On February 24, 1899, and during the January, 1899, term of the circuit court, the cause came on for trial, and, a jury being waived, was submitted to the court on following evidence and following
Agreed Statement of Facts.
Said "Exhibit A" attached to said statement of facts is in words and figures following, to-wit:
Also endorsed, or stamped thereon with a rubber stamp the following:
The contents of the regular shipping bill of appellant referred to in "Exhibit A," is substantially as stated by counsel for appellant, as follows:
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