Cudahy Packing Company v. Chicago & Northwestern Ry. Co.
| Decision Date | 11 June 1917 |
| Citation | 196 S.W. 406,196 Mo.App. 528 |
| Parties | THE CUDAHY PACKING COMPANY, Appellant, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Daniel E. Bird, Judge.
AFFIRMED.
New Miller, Camack & Winger for appellant.
Sebree Conrad & Wendorff for respondent.
Plaintiff is a meat packing establishment and defendant an interstate carrier. The former made two shipments of meat over defendant's road, as the initial carrier, from Sioux City, Iowa, one to New York and the other to Massachusetts. Each arrived at destination over connecting carriers, in a damaged condition and this action was instituted under the interstate commerce law, resulting in a verdict for plaintiff, which the court set aside and granted a new trial. Plaintiff appealed from that order.
The petition is in two counts, one for each shipment, and in each count it is alleged that defendant issued a bill of lading evidencing the contract of carriage and that plaintiff was the legal owner and holder of such bills. The reason for granting a new trial is stated, in the order, to be that there was no evidence that bills of lading were issued.
Plaintiff concedes the fact to be as stated by the court, but insists that a bill of lading was not necessary to maintaining the cause of action alleged. That part of the Carmack amendment to the Interstate Act, applicable (sec. 20) reads as follows: "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." It must be conceded that the words used in this section are of a mandatory character, and defendant contends that they are emphasized by the language used in decisions of the Supreme Court of the United States, especially Adams Express Co. v. Croninger, 226 U.S. 491. At page 504, 57 L.Ed. 314, 33 S.Ct. 148 of the opinion in that case, it is said that one of the "dominating features of that amendment" is that "It affirmatively requires the initial carrier to issue 'a receipt or bill of lading' when it receives 'property for transportation from a point in one State to a point in another.'" At page 505 is found the expression that "It (the Carmack amendment) embraces the subject of the liability of the carrier under a bill of lading which he must issue and limits his power to exempt himself by rule, regulation or contract." At page 506, it is said, "The duty to issue a bill of lading and the liability thereby assumed are covered in full," etc. And at page 507, in speaking of the proviso clause of the section which continues existing remedies and rights of action, whether under State statutes or the common law, limits such remedies and rights, thus continued, to such as are not inconsistent with the provisions of the act. To this may be added the recent case of Pennsylvania R. R. Co. v. Olivit Bros., decided by that court April 30, 1917.
If verbal contracts for interstate shipments may be made and enforced under the interstate law, will not uniformity cease? And will not full room be left for discrimination and thus the principal feature of the statute be destroyed? If a shipper desires the remedy and the protection provided by that statute should he not demand a bill of lading?
However, it has been ruled by several State courts, in line with plaintiff's suggestion, that the issuance of a bill of lading is "a mere detail requirement," and is not necessary to interstate shipments and liability under the interstate law. [Aton Piano Company v. Railroad, 152 Wis. 156; Gamble-Robinson Company v. Union Pacific Railroad Company, 262 Ill. 400, 405, 104 N.E. 666; International Watch Company v. Delaware, Lackawanna & W. Railroad Company, 80 N.J.L. 553, 556, 78 A. 49.]
But those cases are not like the one before us. Neither of them purports to have been instituted and based on a bill of lading, while in the present case, as we stated at the beginning, the action, as disclosed by the petition, is founded on a bill of lading issued and delivered to plaintiff.
We are not put to the necessity of deciding this question in this case, since plaintiff has chosen to found his action on the issuance of a bill of lading. Having stated that character of action, it is necessary to prove it. For a party cannot sue on one cause of action and recover upon another even though they relate to the same subject-matter. [Cole v. Armour, 154 Mo. 333, 351, 55 S.W. 476; Huston v. Tyler, 140 Mo. 252, 36 S.W. 654; Ingwerson v. Railroad, 205 Mo. 328, 335; Koons v. St. Louis Car Company, 203 Mo. 227, 254, 101 S.W. 49; Roaring Fork Potato Growers Ass'n v. Clemons Produce Company, 193 Mo.App. 653, 657, 658, 187 S.W. 617.]
But plaintiff seeks to avoid this fundamental rule by the claim that the action was not founded on the bill of lading. But manifestly it is. The petition states that for "the consideration of certain charges to be paid to defendant" it agreed to transport and deliver; and then sets up the bill of lading. [Meade v. Railroad, 183 Mo.App. 353; Laming Mfg. Co. v. Railroad, 182 S.W. 181.]
But plaintiff has endeavored to excuse itself from proof by invoking a presumption, i. e., that since the interstate statute directs that a bill of lading shall be issued by the initial carrier, it will be presumed that it did its duty and one was issued. The following cases on presumptions are cited in support of this. [Cinn. & Tex. Pac. Ry. Co. v. Rankin, 241 U.S. 319, 327, 60 L.Ed. 1022, 36 S.Ct. 555; Bank of U.S. v. Dandridge, 12 Wheat. 64, 69-70, 6 L.Ed. 552; Knox Co. v. Ninth Nat. Bank, 147 U.S. 91, 97, 37 L.Ed. 93, 13 S.Ct. 267; Maricopa & Phoenix R. R. v. Arizona, 156 U.S. 347, 351; Sun Pub. Co. v. Moore, 183 U.S. 642, 649, 46 L.Ed. 366, 22 S.Ct. 240.]
We think those cases are not applicable. The first is...
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