Frawley v. Atchison, T. & S. F. R. Co.

• Decision Date: 04 October 1927
• Docket Number: No. 19587.,19587.
• Parties: FRAWLEY et al. v. ATCHISON, T. S. F. R. CO.
• Court: Missouri Court of Appeals

299 S.W. 93

FRAWLEY et al. v. ATCHISON, T. S. F. R. CO.

No. 19587.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by F. F. Frawley and A. J. Schimpff, partners doing business under the firm name of Frawley & Schimpff, against the Atchison, Topeka & Santa Fe Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

James F. Green, of St. Louis, M. U. Hayden, of Detroit, Mich., and T. T. Railey, of St. Louis, for appellant.

Frank C. Smith, of St. Louis, for respondents.

SUTTON, C.

This is an action to recover damages for delay in an interstate shipment of three carloads of live stock. The trial, before the court without a jury, resulted in a judgment in favor of plaintiffs for $350, and defendant appeals.

The cause was tried below upon the following agreed statement of facts:

"The live stock referred to in the petition was duly delivered by the defendant to Kansas City stockyards, and, after being fed and rested, was in due course reloaded at the Kansas City stockyards at 4:40 p. m., August 26, 1922, and thereafter, in due course, was switched to the Missouri Pacific and placed in Missouri Pacific outbound train scheduled to leave for St. Louis the same evening.

"On the same day, and about the same hour, that the stock in question was reloaded for movement into St. Louis, all conductors, engineers, trainmen, and firemen in freight road service at Jefferson City, Mo., and certain other division points on the line of the Missouri Pacific Railroad Company, struck because of the fact that the Missouri Pacific Railroad Company had sanctioned the placing of United States marshals as guards at such points during the so-called shopmen's strike then pending, which shopmen's strike began July 1, 1922. By reason of this unanticipated walkout, occurring during the afternoon of August 26, 1922, the Missouri Pacific Railroad Company was obliged to annul all freight train service between Kansas City and St. Louis, and accordingly ran the plaintiff's stock back to National Stockyards at Kansas City, where it was unloaded and held until the next evening, and then moved to St. Louis on the first available train over another line.

"No claim is made that the delay was in any way negligent, unless the carriers are bound by the wrongful action of their employés in striking and quitting the service, thereby occasioning the damage in question. Some claim is made for other damage, which was not the proximate result of the strike, and for which the sum of $100, hereinafter referred to, has been agreed upon in settlement.

"It is further agreed that the defendant was the initial carrier, within the contemplation of the Carmack Amendment, with respect to through transportation, and that said shipment moved under and pursuant to live stock contracts and tariffs by virtue of which the carriers relieved themselves from liability for damage occasioned by strikes, in so far as this could legally be done, and the only question at issue concerns the validity of this limitation of liability for damage occasioned by strikes, which issue shall be submitted to the court without a jury. It is the contention of plaintiff that any purported limitation of liability from damage occasioned by striking employés is in contravention of the common law and the Cummins Amendment to the Interstate Commerce Act, and therefore void. The question left open for the court is as to whether or not the carrier is liable for damages occasioned by delay, when such delay is the result of a strike of its employés.

"Counsel for the carrier relies upon the strike-exempting clause in its bill of lading. Counsel for plaintiff contends that, under the common law and Cummins Amendment, any such strike-exempting clause is a nullity. Hence, if the court should find that the strike-exempting clause is binding on the shipper, plaintiff is to have a judgment for $100 to cover damage in transit, other than that which was the direct and proximate result of said strike. Should the court find that such strike-exempting clause is not binding on the shipper, then such judgment shall be for $350."

The defendant complains here that, under the agreed statement of facts and the law applicable thereto, the judgment given for plaintiffs should have been for the sum of $100, and no more. The original Interstate Commerce Act was enacted in 1887. 24 U. S. Statutes at Large, 379. The act was amended in 1906. 34 U. S. Statutes at Large, 584 and 595. Section 7 of this Amendment, which is generally referred to as the Carmack Amendment, provided:

"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."

The First Cummins Amendment (38 U. S. Statutes at Large, 1197, § 1 [49 USCA § 20, par. 11; U. S. Comp. St. § 8604a]), enacted in 1915, provides as follows:

"That any common carrier, railroad, or transportation company subject to the provisions of this Act receiving property for transportation from a point in one state or territory or the District of Columbia to a point in another state, territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or 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 or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one state, territory, or the District of Columbia to a point in another state or territory, or from a point in a state or territory to a point in the District of Columbia, or from any point in the United States to a point in an adjacent foreign country, or for transportation wholly within a territory shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual 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 or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void."

The Second Cummins Amendment (39 U. S. Statutes at Large, 442 [49 USCA § 20, par. 11; U. S. Comp. St. § 8604a]), enacted in 1916, amended the First Cummins Amendment by adding to section 1 thereof the following proviso

"Provided, however, that the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers; second, to property, except ordinary live stock, received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and shall not, so far as relates to values, be held to be a violation of section ten of this Act to regulate commerce, as amended. * * * The term `ordinary live stock' shall include all cattle, swine, sheep, goats, horses, and mules, exbill such as are chiefly valuable for breeding, racing, show purposes, or other special uses."

The Second Cummins Amendment obviously has no application to the shipment involved in this case, for shipments of ordinary live stock are expressly excepted from its provisions. In 1912, the Supreme Court of the United States, in Adams Express Co. v. Croninger, 226 U. S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, having under review the Carmack Amendment, ruled that it was competent for the carrier by a fair, open, and reasonable agreement to limit the amount recoverable by the shipper to an agreed value made for the purpose of obtaining the lower of two or more...