Crockett v. St. Louis & H. Ry. Co.

• Decision Date: 01 February 1910
• Citation: 126 S.W. 243,147 Mo. App. 347
• Court: Missouri Court of Appeals
• Parties: CROCKETT v. ST. LOUIS & H. RY. CO. et al.

126 S.W. 243

147 Mo. App. 347

CROCKETT v. ST. LOUIS & H. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

February 1, 1910.

On Motion for Rehearing, March 8, 1910.

1. CARRIERS (§ 180)—FREIGHT—LIABILITY— INITIAL CARRIER—LIABILITY UNDER STATUTE—CONTRACT.

Under Rev. St. 1899, § 5222 (Ann. St. 1906, p. 2718), making the carrier receiving the property, or the railroad company issuing bills of lading, liable for damage caused by the negligence of any other carrier over whose lines the property passes, the initial carrier may escape liability for injuries beyond its own line by agreeing to transport only to its terminus.

2. CARRIERS (§ 183)—ACTION FOR INJURY TO GOODS—SUIT AGAINST SEVERAL CARRIERS— NECESSITY OF JOINT AGREEMENT.

A partnership among several carriers entering into a joint undertaking to carry particular freight is not essential to authorize a recovery under Rev. St. 1899, § 5222, as amended by Laws 1905, p. 53 (Ann. St. 1906, p. 2718), permitting a plaintiff to unite as defendants, in an action for negligent injury to freight, all carriers through whose hands the freight passed, and recover against the culpable defendant.

3. CARRIERS (§ 177)—CONNECTING CARRIERS— LIABILITY FOR NEGLIGENCE OF CONNECTING CARRIER—CONTRACT—BILL OF LADING.

Where, by the principal contracting clause in a bill of lading, the initial carrier issuing it agreed to carry from a point on its own line through to destination at a point on a connecting line, the contract was an undertaking for through carriage to destination so as to make it liable for negligent losses occurring on the connecting line under Rev. St. 1899, § 5222 (Ann. St. 1906, p. 2718), making the carrier issuing the bill of lading liable for injuries caused by the negligence of any other carrier, though a subsequent clause of the bill of lading provided that it should carry the goods to the end of its own line and deliver to the connecting carrier, when its liability should cease.

4. CARRIERS (§ 185)—ACTIONS AGAINST SEVERAL CARRIERS—BURDEN OF PROOF—NEGLIGENCE.

In an action against both the initial and connecting carrier under Rev. St. 1899, § 5222, as amended by Laws 1905, p. 53 (Ann. St. 1906, p. 2718), making the carrier issuing a bill of lading liable for injuries caused by the negligence of any other carrier over whose line the goods passed, and permitting a plaintiff to unite as defendants, in an action for negligent injury to freight, all carriers through whose hands the freight passed, and recover against the negligent defendant, plaintiff must prove the negligence of one of the carriers in order to recover against it, there being no presumption of negligence by the last carrier, where the action is for negligent injuries, and the initial carrier cannot be held liable without proof of negligence on the ground that it has a remedy over under Rev. St. 1899, § 2870 (Ann. St. 1906, p. 1654), allowing contribution among judgment defendants in tort actions to the same extent as in contract actions; that section only applying to joint tort-feasors.

5. CARRIERS (§ 177) — FREIGHT—CONTRACT— BILLS OF LADING—INSTRUCTIONS—THROUGH CARRIAGE.

Where the bill of lading issued by the initial carrier provided that it should transport the freight only to the end of its own line for delivery there to the connecting carrier for transportation to destination as the agent of the shipper, and not of the initial carrier, and that the latter should be liable only for loss occurring on its own line while the freight was in its actual custody, the initial carrier's contract was not for through shipment, so that it

was only liable for negligent losses occurring on its own line.

6. CARRIERS (§ 177)—FREIGHT—CONNECTING CARRIERS—AGENCY.

Where freight shipped over two roads was forwarded over a bridge belonging to a bridge company which connected the line of the final carrier at a river, under an arrangement between it and the bridge company, the latter, though liable to the shipper for its torts in transporting the freight, was the agent of the final carrier, so as to make it liable for the bridge company's negligence in transporting.

7. CARRIERS (§ 47)—CONTRACT OF CARRIAGE— AGENCY—CONNECTING LINES.

If two or more carriers are copartners for transporting freight over their respective lines, a contract made by the agents of one of them with a shipper binds them all, in absence of a stipulation therein to the contrary.

8. CARRIERS (§ 177)—FREIGHT—JOINT LIABILITY—CONNECTING CARRIERS.

Though several carriers are not copartners in transporting freight, if one of them is authorized by the others to make transportation contracts for all of them, each will be liable for the negligence of the others in transporting.

9. CARRIERS (§ 177)—FREIGHT—CONNECTING CARRIERS—LIABILITY.

In absence of statute, a final carrier having a joint traffic agreement with the initial carrier will not be liable for the latter's negligence in transporting freight thereunder, unless there was a copartnership agreement or joint undertaking by which it agreed to carry the freight over the whole route.

10. CARRIERS (§ 177)—FREIGHT—CONNECTING CARRIERS—LIABILITY.

Under an agreement by the final carrier to transport from the junction to final destination on its line, it would only be liable for negligent losses occurring on its own line.

11. CARRIERS (§ 177)—FREIGHT—CONTRACT— CONSTRUCTION—JOINT AGREEMENT.

One of defendant railroad companies received freight for transportation to a point on the line of the other road under a joint traffic agreement by which the freight charge was prorated between them; the initial carrier having authority to issue through bills of lading to the point of destination. By the bills of lading of two of the shipments the initial company agreed to transport the property to final destination over its own line, and that of the connecting carrier provided that it should only be liable for damage occurring on its own line while the freight was in its actual custody, and the bill of lading for the other shipments provided that the initial company should transport the freight to the end of its line for delivery to the connecting carrier, and that, in continuing the shipment, the latter was the agent of the shipper and not of the initial carrier, and the latter should be liable only for damage occurring on its own line. Held, in view of the provisions of the bill of lading, that there was no joint undertaking or partnership between the carriers for transporting the goods so as to impose a joint and several liability on each carrier for the whole route.

12. CARRIERS (§ 187)—FREIGHT—ACTIONS— JOINT LIABILITY—INSTRUCTIONS.

In an action against two carriers for negligent injuries to freight en route, on the theory that defendants were jointly liable because of a partnership agreement or joint undertaking for the shipment of the freight to destination, the court instructed that, to make defendants jointly liable for negligent injuries to freight en route, they must each have been common carriers, and must have agreed to associate themselves together and form, as to the shipper, a continuous line between the point of shipment and final destination on the line of the terminal carrier; that the contract of shipment with the initial carrier was for carriage over its own and the connecting line for an agreed sum for the whole trip, which sum was divided between the two roads. Held, that the words "agreed to associate themselves together" were misleading, in that they were too indefinite to prescribe a test of a partnership or joint undertaking to ship the goods; not every association between carriers for through shipment being a partnership.

13. CARRIERS (§ 171)—PARTNERSHIP—EXISTENCE OF RELATION—CONNECTING CARRIERS —"PARTNERS."

That connecting carriers agreed to associate themselves together, and form what to a shipper was a continuous line between the point of shipment and final destination on the line of the terminal carrier, and the contracts of carriage made with the initial carrier provided for carriage over both lines for an agreed sum for the entire trip which was prorated between them, did not make such carriers "partners" in transporting the freight; each company not having the right to manage the entire business of both between the points of shipment, and there being no division of profits and expenses.

14. CARRIERS (§ 171)—LIABILITY TO THIRD PERSONS—HOLDING OUT AS PARTNERS.

The facts stated would not warrant a shipper as a reasonable man to deal with such carriers as copartners, where the bills of lading covering the shipment provided that the initial carrier should only be liable for negligent losses occurring on its own line, and that the connecting carrier transported the goods as agent of the shipper.

15. CARRIERS (§ 185)—FREIGHT—INJURIES— ACTIONS—PRESUMPTIONS—NEGLIGENCE.

In absence of statute, the initial carrier would be prima facie liable for injury to shipments enroute, but could relieve itself of such liability by proving delivery in a reasonable time and in good order to the connecting carrier.

On Motion for Rehearing.

16. COURTS (§ 91)—RULE OF DECISION—DECISIONS OF SUPREME COURT.

The Court of Appeals is bound by a rule of law enunciated and followed by the Supreme Court.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by J. P. Crockett against the St. Louis & Hannibal Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Geo. Robertson and J. D. Hostetter, for appellants. J. O. Allison and P. H. Cullen, for respondent.

GOODE, J.

The petition was filed to the September term, 1905, of the circuit court of Audrain county, and, the brief for plaintiff says, after the amendment of section 5222 of the Revised Statutes of 1899 (Ann. St. 1906, p. 2718) took effect. Said statute makes a carrier receiving property to be carried to a point either within or without the state, or a railroad or...