Durnford v. Chicago, Burlington & Quincy Railroad Company, a Corp.

• Decision Date: 08 January 1923
• Citation: 246 S.W. 973,213 Mo.App. 93
• Parties: T. H. DURNFORD, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant
• Court: Kansas Court of Appeals

246 S.W. 973

213 Mo.App. 93

T. H. DURNFORD, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

January 8, 1923

Appeal from the Circuit Court of Jackson County.--Hon. W. C Reynolds, Special Judge.

AFFIRMED.

Judgment affirmed.

Lebrecht Kaspar & Barber for respondent.

Wagner Dean, Langworthy and Thomson & Borders for appellant.

OPINION

ARNOLD, J.

This suit was instituted in a court of a justice of the peace of Kaw Township, Jackson County, Missouri, against the defendant, to recover the sum of $ 390.91 for loss alleged to have been sustained by plaintiff on account of the freezing of a carload of potatoes shipped by plaintiff in Northern Pacific car No. 97034, on or about November 13, 1917, from Lolo, Mont., shipper's order bill of lading to Kansas City, Mo.

The contract for carriage was made with the Northern Pacific Railway Company at Lolo, Mont., on November 13, 1917, for shipment to Kansas City, on a through bill of lading to destination, and provided for carriage over said railway to Billings, Mont., and delivery at that point to defendant for carriage to Kansas City, Mo. The contract provided for shipment under option No. 2, which meant that protection from frost and freezing should be provided by the carrier.

The shipment moved, as provided by the bill of lading, from Lolo, Mont., over the Northern Pacific Railway, a distance of 369 miles and was there delivered to defendant which carried it a distance of 1047 miles to final destination. Plaintiff was present at Lolo when the shipment was weighed by a weighmaster, and made a notation of each wagon load, as announced by the weighmaster. He did not examine the scale beam as each load was weighed but later compared his memoranda of the weights with those of the weighmaster.

When the shipment was delivered to consignee at Kansas City some of the potatoes were frozen and had to be dumped, while another portion had to be disposed of at a price less than the current market value of potatoes not damaged by freezing. There is no evidence of the condition of the car and its contents at the time of the delivery to defendant, and none until the unloading inspection. The statement upon which the suit was instituted is as follows:

"Defendant to plaintiff debtor:

"Account of potatoes contained in car No. 97034 shipped from Lolo, Montana, on or about November 13, 1917, and received by the defendant in good condition and which the defendant delivered in a frozen, decayed and damaged condition and for delay in transit, $ 390.91. Wherefore plaintiff demands judgment in the sum of $ 390.91, together with the costs of this action."

The issues were found for plaintiff in the justice court and his damages assessed at $ 331.50. In due time the cause was appealed to the circuit court of Jackson County, where a trial resulted in a verdict and judgment in favor of plaintiff in the sum of $ 323. Motions for new trial and in arrest were overruled and defendant appeals.

The first assignment of error is based upon the refusal of the court to give instructions 1, 2, 3 and 6, in the nature of demurrers offered on behalf of defendant at the close of the entire case. These instructions are based upon the Carmack Amendment to the Hepburn Act. [Sec. 8604-A, U.S. Comp. Stat. 1918; sec. 7, 34 Stat. 595; sec. 1, 38 Stat. 1196; 39 Stat. 441.] In support of this contention it is urged that the action is bottomed upon an interstate shipment of freight and is therefore governed by the Act of Congress of June, 1906; that defendant, under the provisions of said Act, as a connecting and final carrier, is liable only for such loss as occurs on its own line; that there is no evidence in the case as to when the loss, if any, occurred; that plaintiff was erroneously permitted to rely upon the common-law presumption of loss in the hands of the terminal carrier to make his case. The Carmack Amendment provides, in part (sec. 8604-A, U.S. Comp. Stat. 1918):

"Any common carrier, railroad, or transportation company, subject to the provisions of this act 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, within the United States . . . when transported on a through bill of lading . . . Provided, further, 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 . . ."

Defendant bases its hope of reversal upon the application of the clause above quoted to the facts in this case, and argues that the United States Government has control over the entire field of interstate commerce by virtue of section 8, article 1, of the Constitution of the United States.

In construing the clause above quoted, there must be kept in mind the proviso "that nothing in this section shall deprive the holder of such receipt or bill of lading of any remedy or right of action which he has under the existing law . . ." There is no contention by plaintiff that the Federal Government, by the interstate commerce act, has not assumed jurisdiction over interstate shipments by common carriers. It is conceded that no rights remain to the states relative to such regulations where such control is assumed by the Federal Government and that the rulings of the United States courts relative thereto become the law and must be followed, notwithstanding existing decisions by State courts contrary thereto.

In the case of Adams Express Co. v. Croninger, 226 U.S. 491, l. c. 507-8, it is said:

"To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing Federal law at the time of his action, gives to it a more rational interpretation than one which would preserve rights and remedies under existing State laws, for the latter view would cause the proviso to destroy the act itself. One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for a loss or damage incurred upon the line of the former. The liability of such succeeding carrier in the route would be that imposed by this statute, and for which the first carrier might have been made liable."

The act would seem to limit the liability imposed upon the carrier to "loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered," and plainly implies a liability for some default in its common-law duty as a common carrier.

In the case of Texas & Pac. Ry. Co. v. Abilene Cotton Mills Co., 204 U.S. 426, 51 L.Ed. 553, 27 S.Ct. 350, it was claimed, as in the case at bar, that section 22 of the Hepburn Act continued in force all rights and remedies existing under the common law, but the court said that it was "evidently only intended to continue in existence such other rights or remedies for the redress of some specific wrong or injury, whether given by the Interstate Commerce Act, or by State statute, or common law, not inconsistent with the rules and regulations prescribed by the provisions of this act." It was also said that it could ...