Adams Express Co. v. Burr Oak Jersey Farm

• Decision Date: 19 November 1918
• Citation: 206 S.W. 173,182 Ky. 116
• Parties: ADAMS EXPRESS CO. v. BURR OAK JERSEY FARM. [a1]
• Court: Kentucky Court of Appeals

206 S.W. 173

182 Ky. 116

ADAMS EXPRESS CO. v. BURR OAK JERSEY FARM. ^[a1]

Court of Appeals of Kentucky.

November 19, 1918

Appeal from Circuit Court, Shelby County.

Action by the Burr Oak Jersey Farm against the Adams Express Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Maxwell & Ramsey, of Cincinnati, Ohio, and Beard & Pickett, of Shelbyville, for appellant.

Beckham & Gilbert, of Shelbyville, for appellee.

THOMAS J.

On June 23, 1916, the appellant and defendant below, Adams Express Company, entered into written contracts with the plaintiff and appellee, Burr Oak Jersey Farm, whereby it agreed to transport by express from Turner's Station, a suburb of the city of Baltimore, to Scotts, a way station in Shelby county, Ky. four carloads of Jersey cattle, consisting of about 100 head. The consideration agreed to be paid was $1,008, which was according to the regular schedule of rates for that character of freight transported in that manner between the points mentioned, and which schedule was on file with the Interstate Commerce Commission. The cattle left Turner's Station at about 1 o'clock in the afternoon of that day, and reached the city of Washington in time to connect with and be attached to a section of the Chesapeake &amp Ohio fast passenger train, known as No. 5, which section left the city of Washington at about 3 o'clock p. m. on that same day. It arrived in Lexington at about 11 a. m. on the morning of the 24th, when the four cars were detached from the fast Chesapeake & Ohio train and placed upon a side track in the yards at Lexington, where they remained until 3 o'clock that afternoon, and were then attached to a local passenger train operated by the Louisville & Nashville Railroad Company and taken to Scotts, the point of destination, arriving there about 5:25 p. m. The point of destination is about five miles west of the city of Shelbyville, and was not a stopping point for the fast Chesapeake & Ohio train, and it was because of this fact that the shipment was detached from that train as stated and remained in Lexington from 11 a. m. until 3 p. m. The Louisville & Nashville train, which delivered the shipment to the point of its destination was the first train running over that road which stopped at Scotts.

Plaintiff brought this suit, claiming that it had entered into a special contract with the defendant for a through and direct transportation of the cattle, and that it had negligently failed and refused to comply therewith, and in doing so caused the four hours' delay in Lexington, resulting, as plaintiff claimed, in damage to its cattle, which it placed in the petition at the sum of $1,350, for which it sought judgment. The answer traversed the allegations of the petition, and further relied upon a plea of res adjudicata which it claimed arose because of a suit which it had previously instituted against the plaintiff here in the federal court for the Eastern district of Kentucky to recover the freight charges, and in which it was successful. A reply denying the allegations of that paragraph of the answer made the issues, and upon trial the jury returned a verdict in favor of plaintiff for the sum of $1,000, upon which judgment was rendered, and, complaining of it, the defendant prosecutes this appeal.

Many errors are relied upon as grounds for a reversal, among which are (1) that the court erred in submitting to the jury by a complained-of instruction the issue concerning the special contract alleged in the petition; and (2) failure of the court to sustain defendant's motion for a peremptory instruction in its favor. Under the view which we take of this record, we deem it unnecessary to consider any of the complaints, except the two mentioned.

In regard to complaint (1) the evidence is wholly insufficient to sustain the claim of any special contract of shipment. True, there appears in the record some correspondence that took place prior to the date of the shipment; but this pertained to the procurement of cars for the transportation of the cattle, and we find nothing in the correspondence showing any agreement to enter into any contract of shipment other than the ordinary and usual one. The fact that plaintiff was endeavoring to have the cars ready to be loaded in time for the shipment to go out on that day, so as to make connection with train No. 5 of the Chesapeake & Ohio at Washington (which was done), and the agreement of the defendant to have the cars ready for that purpose, present no features of any special contract, and the court was therefore in error in recognizing any such by giving the instruction objected to. Moreover, if the evidence had been sufficient to give color to that contention made by the plaintiff, it should have been discarded by the court because it was incompetent for the parties to make such a contract under the facts appearing in this record. The shipment was an interstate one, and the schedule of rates as we have stated was on file with the Interstate Commerce Commission. Neither could the carrier nor the shipper be permitted to engage in any contract different from that open to the general public, or which imposed any additional advantages to the shipper or more extended duties on the part of the carrier. This, under similar circumstances, has often been determined by the United States Supreme Court, as will be seen from the cases of T. & P. Ry. Co. v. Mugg, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011, Bitterman v. L. & N. R. R. Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171, 12 Ann.Cas. 693, Chicago & Alton R. R. Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann.Cas. 1914A, 501, Atchison, Topeka & Santa Fé Ry. Co. v. Robinson, 233 U.S. 173, 34 S.Ct. 556, 58 L.Ed. 901, Boston & Maine R. R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L.R.A. 1915B, 450, Ann.Cas. 1915D, 593, and Southern Ry. Co. v. Prescott, 240 U.S. 632, 36 S.Ct. 469, 60 L.Ed. 836.

The federal statute governing the rights of the parties under interstate shipments, like the one involved here, is the act of Congress of June 29, 1906 (34 Stat. 586, c. 3591, § 2 [U. S. Comp. St. 1916, § 8569]), amending the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, § 6, 24 Stat. 380), which amendatory act reads:

"No carrier, unless otherwise provided by this act, shall engage or participate in the transportation of passengers or property, as defined in this act, unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs."

The cases from the United States Supreme Court, supra, in construing that act fully sustain the position taken above, and this court has followed the same interpretation in the cases of L. & N. R. R. Co. v. Coquillard Wagon Works, 147 Ky. 530, 144 S.W. 1080, L. & N. R. R. Co. v. Allen, 152 Ky. 145, 153 S.W. 198, and Boston v. Southern Pacific Co., 175 Ky. 641, 194 S.W. 814. It is therefore clear that the first complaint of appellant on this appeal is well founded, and will have to be sustained.

Considering now complaint (2), supra, the evidence discloses that both the manager of the defendant and his son accompanied the shipment. They both say, in substance, that they have no complaint of the trip from its inception to Lexington, Ky. On...