Western Sash & Door Co. v. Chicago, Rock Island & Pacific R. Co.

Citation76 S.W. 998,177 Mo. 641
PartiesWESTERN SASH & DOOR COMPANY v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
Decision Date17 November 1903
CourtUnited 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.

OPINION

FOX, J.

This action was commenced before a justice of the peace in Jackson county, September 28, 1898, by filing the following statement:

"Kansas City, Mo., July 29, 1898.

"Chicago, Rock Island & P. Ry. Co.,

To Western Sash & Door Co.,

Dr.

"To damages for negligently breaking a window

40x70 op'g., No. 67, shipped from Kansas

City, Mo., to Blackwell, O. T., July 20, 1898,

$ 6.75

"To freight paid on same to Blackwell,

.41

$ 7.16"

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.

"For the purpose of this trial of the above entitled cause the following facts may be taken as admitted by both parties hereto, reserving to each party the right to introduce at the trial such further testimony as it may desire.

"That the plaintiff and the defendant are corporations lawfully doing business in Kansas City, Missouri, defendant being a common carrier operating a line of railroad from said city to the town of Medford, Oklahoma Territory. That on July 20, 1898, plaintiff was the owner of one glass window which it delivered, carefully and securely packed in a crate, to defendant, and received the bill of lading or receipt hereto attached and marked 'Exhibit A,' which receipt refers in terms to the 'regular shipping bill,' a copy of which is also hereto attached and marked 'Exhibit B.' That Blackwell, the destination of the window indicated by the bill of lading, is not on defendant's line of road, but that its line extends only to Medford, Oklahoma, and that defendant is in nowise interested in the line of road from Medford to Blackwell. That defendant carried the said window to Medford, Oklahoma, and there delivered it, without examination, to the Hutchinson & Southern Railroad Company, the owner of the said line of road from Medford to Blackwell. That when plaintiff delivered the window to defendant, plaintiff did not know that Blackwell was not on defendant's line of road, nor were any questions asked, nor was anything said in regard thereto. That the window reached Blackwell in such a badly damaged condition that it was worthless. That the damage to said window amounted to $ 7.16."

Said "Exhibit A" attached to said statement of facts is in words and figures following, to-wit:

"R. I. Railroad, Kansas City, 7-20-1898. Received from Western Sash & Door Co. in apparent good order, property marked and described below (contents and value otherwise unknown) to be forwarded subject to the rules and conditions printed on the regular shipping bills now used by the company signing this receipt, said rules and conditions being accepted and agreed to by the shipper, addressed to Florence Lbr. Co., Blackwell, O. T.

"No. and Description of Articles.

"1 Wd. 67 opg 40x70. Weight.

"[Internal revenue stamp, 1 cent.]"

Also endorsed, or stamped thereon with a rubber stamp the following:

"C. R. I. & P. Ry., Kansas City, Mo., 14th and Wyoming Sts. Received in apparent good order. This company will not be responsible beyond stations on this road. F. W. Segur, Agent, Jul. 21, 1898, per E."

The contents of the regular shipping bill of appellant referred to in "Exhibit A," is substantially as stated by counsel for appellant, as follows:

"A blank line for the name of station and date, followed by the words 'received from,' followed by a blank line for the insertion of the shipper's name, followed by the words 'in apparent good order, by the Chicago, Rock Island & Pacific Railway Company, the following described packages, marked and numbered as per margin, subject to the conditions and regulations of the published tariff of said company, to be transported over the line of this railroad to,' followed by a line for the insertion of the name of the station at the end of defendant's line, followed by the words, 'and delivered after payment of freight charges in like good order, to the next carrier (if the same are to be forwarded beyond the lines of this company's road), to be carried to the place of destination, it being expressly agreed that the responsibility of this company shall cease at this company's depot at which the same are to be delivered to such carrier, but this company guarantees that the rate of freight for the transportation of said packages from the place of shipment to,' followed by a blank line in which to insert the name of the place of the final destination of the property, followed by the words 'shall not exceed,' followed by a blank line in which to insert the through rate. It further provides that 'this company shall not be responsible for the . . . breakage of glass,' and it is 'further especially agreed that for all loss or damage occurring in transit of said packages the legal remedy shall be against the particular carrier or forwarder only in whose custody the packages may actually be at the time of the happening thereof, it being understood that the Chicago, Rock Island & Pacific Railway Company assumes no other responsibility for their safe...

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