Dunlap v. Chicago & Alton Ry. Co.
| Decision Date | 01 February 1915 |
| Citation | 172 S.W. 1178,187 Mo.App. 201 |
| Parties | CLAUDE DUNLAP, Respondent, v. CHICAGO & ALTON RALWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Callaway Circuit Court.--Hon. D. H. Harris, Judge.
Judgment reversed.
Scarritt Scarritt, Jones & Miller for appellant.
(1) The shipments having been from Fulton, Missouri to Chicago Illinois, were interstate commerce and governed by the Federal law. Hamilton v. Railroad, 177 Mo.App. 145. (2) The court erred in not holding that plaintiff's failure to give written notice within five days as provided by the shipping contracts, barred recovery. Hamilton v Railroad, 177 Mo.App. 145. (3) The court erred in giving plaintiffs instructions on its own motion. Railroad v. Interstate Commerce Commission, 117 F. 963-964; Van Hatton v. Railroad, 81 F. 545; Coal Co. v. Railroad, 14 Interstate Commerce 86-90; Georgia Exchange v. Railroad, 20 Interstate Commerce 623-630. (4) The court erred in refusing defendant's instructions limiting the amount of recovery to the value as placed in the shipping contracts, and instruction number 7 on the notice feature. Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314.
Fauntleroy, Cullen & Hay for respondent.
--This is an action against a common carrier for damages caused by negligence in the transportation of two horses shipped at different times and under separate contracts from Fulton, Missouri, to Chicago, Illinois.
In the first count of the petition a negligent injury to a horse valued by plaintiff at $ 350 and shipped June 20, 1912, is alleged and in the second damages are prayed for the negligent injury of a horse shipped June 25, 1912, and valued at $ 2000.
The answer pleads that defendant is an interstate carrier, that the shipments in question were interstate shipments governed by the laws of the United States, that they were made pursuant to the terms and conditions of shipping contracts filed with, and approved by, the Interstate Commerce Commission, and on a posted rate based on a declared valuation of $ 100 for each horse, and that under said contracts plaintiff is not entitled to recover because of his failure to comply with a provision which required him to give defendant notice in writing of each injury within five days "after the live stock in question has been unloaded," and in no event is entitled to recover in excess of $ 100 for each horse, the value declared in the contracts and upon which the rate, in part, was based. The reply alleged that these contracts "were and are illegal and void and without consideration."
Plaintiff recovered judgment in the circuit court on the first count for $ 300, and on the second for $ 160, and defendant appealed.
The proof shows beyond question that each horse was shipped and carried under the terms and conditions of a written contract of a form filed with, and approved by, the Interstate Commerce Commission and on a rate duly filed, published and posted, which was based, in part, on the declared value of $ 100 for each animal. One of the provisions of the contract required that in the event of loss or damage to the horse during the transportation, plaintiff, within five days after it was unloaded at Chicago, should give notice in writing to defendant of his claim therefor, "and in the event of his failure so to do, said second party (plaintiff) hereby releases and shall be barred from all claims of any kind or character against said first party arising out of any injury or damage to said stock."
The horse first shipped was unloaded at Chicago, June 21, 1912, in an injured condition and the second horse was unloaded June 26th in like condition. No written notice or claim was given by plaintiff to defendant before July 11, 1912. Both horses were shipped back to Fulton early in July and the attention of the station agent of defendant at that place was called by plaintiff to the injuries the horses had sustained during their carriage to Chicago, but not until more than five days had elapsed from the date on which the last horse had been unloaded at Chicago.
In the view we entertain it will be necessary to discuss but one of the points urged by defendant against the judgment. These were interstate shipments, falling within the operation of the national laws relating to such shipments. The statutory and juridical rules and policies of this State relating to interstate commerce have been superseded by recent enactments of Congress which, as interpreted and applied in the decisions of the Federal courts, have become the only law of the land pertaining to interstate commerce and must be recognized and enforced by the courts of all the States. The Supreme Court of the United States has made it clear in a number of late decisions that the Interstate Commerce Act and its Amendments have complete and exclusive possession of the subject of the liability of the carriers of interstate commerce, and that this legislation must be interpreted and applied by State courts in conformity with the decisions of the Federal courts. [Adams Express Company v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148; Railroad v. Miller, 226 U.S. 513; Railway v. Latte, 226 U.S. 519; Railway v. Carl, 227 U.S. 639; Railroad v. Harriman, 227 U.S. 657; Manufacturing Co. v. Railroad, 174 Mo.App. 184; Joseph v. Railway, 175 Mo.App. 18; McElvain v. Railroad, 176 Mo.App. 379; Hamilton v. Railroad, 177 Mo.App. 145; Johnson Grain Co. v. Railroad, 177 Mo.App. 194; Bailey v. Railroad, 184 Mo.App. 457, 171 S.W. 44.]
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