Armstrong v. Illinois Cent. R. Co.

• Decision Date: 04 February 1915
• Parties: ARMSTRONG v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

172 S.W. 947

162 Ky. 539

ARMSTRONG v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

February 4, 1915

Appeal from Circuit Court, Ballard County.

Action by M. W. Armstrong against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Hendrick & Nichols, of Paducah, for appellant.

Gus Thomas, of Mayfield, Blewett Lee, of Chicago, Ill., Trabue Doolan & Cox, of Louisville, and Corbett & White, of Wickliffe, for appellee.

HANNAH J.

On January 29, 1913, M. W. Armstrong delivered to the Illinois Central Railroad Company at Paducah a shipment of horses and mules for transportation to Marks, Miss. On May 3, 1913 Armstrong sued the railroad company in the Ballard circuit court for $720 as damages for injuries sustained by the live stock in transit, and $25 as overcharge in freight rate.

The contract of carriage contained a stipulation that no claim for loss or damage to the live stock should be valid, unless claim therefor was presented to the carrier within ten days from the time the stock was removed from the car.

The railroad company answered, pleading this stipulation and the failure of the shipper to conform thereto. The plaintiff filed a demurrer to the second paragraph of the answer, in which paragraph the plea mentioned was set up, and the court overruled the demurrer. The plaintiff thereupon declined to plead further, and the court dismissed the petition. From that judgment the plaintiff appeals.

Upon the demurrer, the averments of the second paragraph of the answer as to the terms of the contract and the failure of the plaintiff to give the notice mentioned within the specified period are taken as true.

The transaction here involved being interstate commerce, the validity of the stipulation in question is one to be determined under the common law as declared by the United States Supreme Court. This has been the rule since Congress by the enactment of the Carmack amendment to the Hepburn act assumed to regulate the subject of the liability of an interstate carrier for the loss of or damage to an interstate shipment. And the federal rule is that such stipulations are valid. Missouri, Kansas & Texas Railway Co. v. Harriman, 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed 690.

Controlled by the Harriman Case, this court in Howard & Callahan v Illinois Central Railroad Co., 161 Ky. 783, 171 S.W. 442, decided December 18, 1914, held valid a...