Bichlmeier v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 12 January 1915
• Court: Wisconsin Supreme Court
• Parties: BICHLMEIER v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

159 Wis. 404

150 N.W. 508

BICHLMEIER

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Appeal from Circuit Court, Barron County; George Thompson, Judge.

Action by Joseph Bichlmeier against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.

On or about October 1, 1912, plaintiff delivered a certain amount of apples to the Missouri Pacific Railway Company at Willis, Kan., for shipment to Almena, Wis., a station on defendant's line. When the apples arrived there was a shortage in weight of nearly one-fifth due, it is alleged, to the negligence of the defendant, and damages for such shortage is demanded. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and from a judgment dismissing the action the plaintiff appealed.J. W. Soderberg, of Barron, for appellant.

Coe Bros., of Barron, for respondent.

VINJE, J.

The complaint specifically alleges that the loss in transit occurred while the apples were in the custody of the defendant and by reason of its negligence. The defendant was the last carrier and the Missouri Pacific Railway Company the initial carrier, and the shipment was an interstate one. Two questions arise upon the demurrer: (1) Since the enactment of the Carmack amendment (34 Stats. at Large 595, c. 3591), may an action for damages to goods in an interstate shipment be maintained against a carrier who negligently causes such damage, but who is not the initial carrier? and (2) does a state court have jurisdiction of such an action?

[1] 1. The Carmack amendment provides:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed:Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

This amendment clearly gives a right of action against the initial carrier. But is such remedy exclusive? The proviso that nothing in this section should deprive the holder of the receipt or bill of lading of any remedy or right of action which he has under existing law was construed in Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, to mean existing federal law and not state law. So the remedy given by the amendment was additional to and concurrent with any other existing federal remedy.

[2] The question, therefore, arises whether, under federal law prior to the enactment of the Carmack amendment, a shipper had a right of action against a carrier negligently causing the damage, but who was not the carrier with whom the initial contract of shipment was made. An affirmative answer to this question was given by the Supreme Court of the United States in the case of the New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 12 L. Ed. 465, and so far as we have been able to discover the rule there announced has remained unchanged. Such are also the uniform holdings of state courts. Section 1, Hutch. Car. (3d Ed.) § 236, and cases cited; 4 Ruling Case Law,...