Farr v. St. Louis Southwestern Railway Co.

• Decision Date: 10 July 1922
• Docket Number: 131
• Citation: 243 S.W. 800,154 Ark. 585
• Parties: FARR v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

243 S.W. 800

154 Ark. 585

FARR v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY

No. 131

Supreme Court of Arkansas

July 10, 1922

Appeal from Columbia Circuit Court; C. W. Smith, Judge; affirmed.

Judgment affirmed.

Joe Joiner, for appellant.

1. Plaintiff's right to sue in the county of his residence was never challenged by any special plea. In struction No. 3 therefore, to the effect that if the damage occurred either on the line of the St. Louis Southwestern Railway Company or the St. Louis Southwestern Railway Company of Texas plaintiff would be entitled to judgment against the Federal agent, was clearly within the provisions of general order No 18, and should have been given. Alabama & V. Ry. Co. v. Journey, 42 S.Ct. Reporter, p. 6.

2. The limitation in the bill of lading issued by defendant Louisiana & Northwestern Railroad, to the effect that in certain cases suit must be brought within two years and one day after the loss or damage, does not apply. This provision, having been written by the defendant, will be construed most strongly against it. The provision does not stipulate that suit must be brought for loss, damage or delay within two years and one day against each carrier or any one carrier of the shipment, such as the initial carrier. When suit was brought on November 4, 1919, and service was had on the Director General on December 11, 1919, a suit was instituted for the damage within the meaning of the bill of lading. The regular three year statute applies to the others. The statute will not run while a suit is pending against any one of the defendants to a common cause of action. 67 Ark. 340; 85 Id. 144; 49 Id. 248; 223 S.W. 340; Id. 192; 218 S.W. 5.

If there was loss or damage in this case, it was in transit. Therefore it falls within the exception in the bill of lading. At any rate, it was a jury question, and the court erred in taking it from the jury by its instruction. 53 Ark. 381.

3. The plaintiff should have had judgment against the receiver. He did not answer, did not plead the limitation in the bill of lading. The receiving carrier is liable for loss or damages to goods or property when caused by negligence anywhere in transit. C. & M. Digest, § 924; 188 S.W. 1177.

Daniel Upthegrove, J. R. Turney and Gaughan Sifford, for the Director General.

Appellant has confused the issue, which is, in fact, not a question of venue, but a question of jurisdiction. Under the Federal Control Act, and general order No. 50, in order to secure service of process on the Director General operating the St. Louis Southewestern Railroad of Texas, it would be necessary to serve such process as would have been good service on the Texas company under existing laws. Sec. 10 of Federal Control Act. Service in this case on the agent of the St. Louis Southwestern Railway, at Waldo, in Columbia County, an agent in no way connected with the St. Louis Southwestern Railway Company of Texas, was not valid service on the Texas Company nor on the Director General operating the same. The trial court was therefore right in restricting plaintiff's right of recovery to damages arising between McNeil and Texarkana on the line of the St. Louis Southwestern Railway Company.

Henry Stevens, for appellees, La. & N.W. R. R. and the receiver.

1. Under the pleadings and the evidence, if plaintiff relied on the contract shown in the bill of lading for the prompt delivery of the car of potatoes to Dallas, it would devolve on him to show the failure of delivery by the Louisiana & Northwestern Railroad Company and the damages sustained by such failure. 44 Ark. 439; 52 Id. 246; 74 Id. 606; Encyc. Ev. pp. 6, 7. He would have to show also that the failure of delivery and the damage complained of was not the result of any interference on his own part. 80 Ark. 288: 6 Cyc. 379, 468.

2. The limitation in the bill of lading as to time of bringing suits is valid. 83 Ark. 502; 120 Id. 43.

A suit is begun when complaint is filed and summons issued thereon. C. & M. Dig., § 1049; 138 Ark. 10. Summons was issued and served on the Louisiana & Northwest Railroad Company on August 2, 1921. The damage complained of is alleged to have occurred in November, 1918.

There is nothing in the action against this defendant which is common to the other defendants. 6 Cyc. 487. The amendment filed in August, 1921, making the Louisiana & Northwest Railroad Company, and issuing summons thereon, fixes the date when suit was begun against it. 17 Ark. 608.

There is no merit in the contention that judgment should have been rendered against the receiver. A judgment against a receiver cannot be effectual unless it is also against the party for whom he was receiver. 17 Encyc. Pl. & Pr. 80; 27 S.W. 109.

OPINION

HUMPHREYS, J.

Appellant instituted suit against the St. Louis Southwestern Railway Company, and Walker D. Hines, Director General, in the Columbia Circuit Court, to recover damages in the stun of $ 698.50 to a car of sweet potatoes, shipped by him from Magnolia, Arkansas, to Dallas, Texas, alleged to have been occasioned through the delay and neglect of the defendants. It was alleged in the complaint that appellant delivered to the Louisiana & Northwestern Ry. Co. at Magnolia, Ark., for shipment to Dallas, Texas, by way of defendant's line of railroad and that of the St. Louis Southwestern Ry. Co. of Texas, 450 bushels of potatoes in baskets, with the right of stopover at Nevada, Texas, receiving therefor from the initial carrier a bill of lading or shipment contract which contained the following clause: "Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, as condition precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property, or, in case of failure to make delivery, then within six months after a reasonable time for delivery has elapsed; and suit for loss, damage or delay shall be instituted within two years and one day after delivery of the property, or, in case of a failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed." Summons was issued on November 4, 1919, and served December 11, 1919, on the agent of the Director General at Waldo, Arkansas, and issued and served on the St. Louis Southwestern Ry. Co. on August 2, 1921, by...