Crockett v. St. Louis & Hannibal Railway Company
| Decision Date | 08 March 1910 |
| Citation | 126 S.W. 243,147 Mo.App. 347 |
| Parties | J. P. CROCKETT, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY and WABASH RAILROAD COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Original Opinion of February 1 and March 8, 1910, Reported at: 147 Mo.App. 347.
Rehearing Denied 147 Mo.App. 347 at 372.
Appeal from Audrain Circuit Court.--Hon. Jas. D. Barnett, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
J. L Minnis, Robertson & Robertson for appellant, the Wabash Railroad Company.
(1) The defendants are connecting carriers and not partners. Sec. 13, art. 12, Const. of Mo., sec. 5222, R. S. 1899; secs. 1122, 1132, 1134, 1138, 1139, R. S. 1899; Moore on Carriers, sec. 24, p. 491; McCann v. Eddy, 133 Mo. 59; Grain Co. v. Railroad, 176 Mo. 480; Hutchinson on Carriers, secs. 164-171; 6 Cyc. 478; Live Stock Co. v. Railroad, 87 Mo.App. 330; Shewalter v. Railroad, 84 Mo.App. 589. (2) The evidence fails to show where any delay occurred, whether on the line of the initial carrier, the intermediate carrier, or the final carrier, and having failed to establish a joint liability as against the two defendants, there can be no recovery as against the intermediate carrier, this defendant. There was no evidence whatever as to any negligent handling of the stock or handling of the cars, but the court in the instructions given as to each count submitted the question to the jury as to the negligent handling of the hogs, and the failure to exercise ordinary and reasonable care for their safety and allowed a recovery for delay and negligent handling by which some of the hogs were killed or crippled. Before the plaintiff could be entitled to recover for crippled or dead hogs, he must establish by evidence that they were given such rough handling as to injure or kill them. Schureman v. Railroad, 88 Mo.App. 183. Plaintiff's instructions allow the jury to allow for the crippled and dead hogs on mere conjecture that some wrongful act was committed and all of them on that point are erroneous. Cash v. Railroad, 81 Mo.App. 109; Paddock v. Railroad, 60 Mo.App. 328. To warrant a recovery by a shipper against a common carrier for damages to live freight, it is not sufficient for the shipper to show a delivery of the live freight to the carrier in good condition and its redelivery in a damaged condition, but he must further produce evidence tending to prove an injury by human agency causing or concurring to cause the loss. Hance v. Express Co., 66 Mo.App. 486.
J. D. Hostetter for appellant, St. Louis & Hannibal Railroad.
As to the shipments mentioned in the 3d and 4th counts in the petition, the initial carrier, the St. Louis & Hannibal Railroad Co., only contracted to transport the live stock to the end of its line and limited its liability to matters occurring on its own line. This it may lawfully do, as is settled by the rulings announced in the following cases, some of which are very recent ones. Western Sash & Door Co. v. Railroad, 177 Mo. 641; Jones v. Railroad, 115 Mo.App. 232; McLendon v. Railroad, 119 Mo.App. 128; Bank v. Railroad, 72 Mo.App. 82; McCann v. Eddy, 133 Mo. 59.
J. O. Allison and P. H. Cullen for respondent.
(1) This action was instituted July 28, 1905. The amendment to section 5222, R. S. 1899, was then in force. Under this act suit may be brought against all connecting carriers in any county where any one of them might be sued. It stands confessed that the Wabash may be sued in Audrain county, hence the court had jurisdiction. R. S. 1899, sec. 5222; Session Acts 1905, p. 94. (2) A corporation has no vested right to be sued in any particular place and a change in the place where suit may be brought pertains to the remedy which the State provides for its citizens and is at all times subject to modification and control by the Legislature and the fact that the causes of action declared on in this suit, arose before the amendment of 1905 does not in any way preclude the bringing of suit in Audrain county. Cooley's Const. Lim. (6 Ed.), p. 450; Kick v. Doerste, 45 Mo.App. 134; In re Garishe, 85 Mo. 469; Schuster v. Weiss, 114 Mo. 158; Roenfeldt v. Railroad, 180 Mo. 554. (3) It is provided by our statutes that every person who shall have a cause of action against several persons may bring suit thereon jointly or severally against any of the persons liable as he may think proper. R. S. 1899, sec. 545; Hill v. Combs, 92 Mo.App. 245; Maddox v. Duncan, 143 Mo. 613; Ess v. Griffith, 128 Mo. 50. (4) Under the General Practice Act it is provided that when there are several defendants and they reside in different counties, the suit may be brought in any such county. R. S., sec. 562; Davison v. Hough, 165 Mo. 561. (5) Under section 562 the principal residing in one county and the agent residing in another may be jointly sued. Stotler v. Railroad and Wiseman, 200 Mo. 107; Lanning v. Railroad, 196 Mo. 647; Ess v. Griffith, 128 Mo. 50. Under the doctrine that the connecting carrier is agent of the initial (which is unquestionably true at least as to two counts in this case), the two companies were jointly liable and suit might be maintained against them in any county in which either the principal or agent resided. (6) The petition states a cause of action against the two companies as connecting carriers and even if it did not and a variance arose under the proof appellant cannot complain because it failed to file an affidavit alleging variance. Ingwerson v. Railroad, 116 Mo.App. 139; Litton v. Railroad, 111 Mo.App. 140; Hensler v. Stix, 113 Mo.App. 162. (7) It is well settled that where several common carriers, each having its own line, associate and form what to the shipper is a continuous line, and contract to carry goods through for an agreed price which the shipper pays in one sum, and which the carriers divide among themselves, they are jointly and severally liable to the shipper with whom they have contracted for a loss taking place on any part of the whole line. Eckles v. Railroad, 112 Mo.App. 240; Wyman v. Railroad, 4 Mo.App. 35; Barrett v. Railroad, 9 Mo.App. 226; Cherry v. Railroad, 61 Mo.App. 303; Shewalter v. Railroad, 84 Mo.App. 589; Live Stock Co. v. Railroad, 87 Mo.App. 334; Champion v. Bostwick, 11 Wend. 571; Champion v. Bostwick, 18 Wend. 175; Pattison v. Blanchard, 1 Seld. 186; Cobb v. Abbott, 14 Pick. 289; Railroad v. Spratt, 2 Dwall. 4; Black v. Railroad, 139 Mass. 308; Hart v. Railroad, 8 N.Y. 37; Hutchinson on Carriers (3 Ed.), secs. 250, 251, 252, 253, 254 and 255; Weyland v. Wilkins, Holt N. P. 227; 1 Starkie 272; Laughter v. Pointer, 5 B. & C. 547; Carter v. Peck, 4 Sneed 203; Cobb v. Abbot, 14 Pick. 289; Fromont v. Coupland, 2 Bing. 170; Rocky Mt. Mills v. Railroad, 119 N. Car. 693, 25 S.E. 854, 56 Am. St. Rep. 682. (8) The rule is well established, that while a common carrier cannot be compelled to do so, it may contract to carry the goods to a point beyond the terminus of its own lines, and thus assume all of the obligations of the whole route so as to become liable for the delivery at such point, and the liability thus attached at the commencement will continue throughout the entire transit. Where it so undertakes to transport the goods throughout to destination, all connecting carriers employed in furthering and completing such transportation become agents of the initial or contracting carrier, for whose defaults the initial or connecting carrier is responsible to the owner of the goods. Ingwerson v. Railroad, 116 Mo.App. 139; Bank v. Some, 119 Mo.App. 1; Hardin v. Railroad, 120 Mo.App. 203; Buffington v. Railroad, 118 Mo.App. 476; Davis v. Railroad, 126 Mo. 69; Eckles v. Railroad, 112 Mo.App. 240; Eckles v. Railroad, 72 Mo.App. 296; Lesinsky v. Great Western Dispatch, 10 Mo.App. 134; Clothing Co. v. Merchants' Dispatch, 106 Mo.App. 487; Hendrix v. Railroad, 107 Mo.App. 127; Hutchinson on Carriers (3 Ed.), 226-230. The shipping contracts involved in counts 1 and 2 have been construed by this court and held to be contracts for a through shipment. Ingwerson v. Railroad, 116 Mo.App. 139; Bank v. Railroad, 119 Mo.App. 1. The contracts relating to the live stock mentioned in the 3rd and 4th counts are contracts for a through shipment. Colfax v. Railroad, 118 Cal. 648; 40 L.R.A. 78; Eckles v. Railroad, 112 Mo.App. 240; Buffington v. Railroad, 118 Mo.App. 476; Bushnell v. Railroad, 118 Mo.App. 623; Railiff Bros. v. Railroad, 118 Mo.App. 644; Hardin v. Railroad, 120 Mo.App. 203; Davis v. Railroad, 122 Mo.App. 637; Hutchinson on Carriers (3 Ed.), sec. 238.
The petition was filed to the September term, 1905, of the circuit court of Audrain county, and, the brief for plaintiffs says, after the amendment of section 5222 of the Revised Statutes of 1899 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 transportation company issuing receipts or bills of lading in this State for property, liable for loss, damage or injury to the property caused by the negligence of the receiving carrier or the railroad or transportation company issuing the bill of lading, and also for damage due to the negligence of any other common carrier, railroad or transportation company to which the property is delivered and over whose line it passes. The amendment enacted in 1905, permitted a plaintiff suing for loss or damage to property while in transit, to unite as defendants all carriers through whose hands the property passed, and to recover in such case from the culpable defendant. Laws 1905, 54. This action is against the St. Louis & Hannibal Railway Company, the initial carrier of the property in question, and the Wabash Railroad Company, a connecting carrier. It was brought to recover the losses on four...
To continue reading
Request your trial