Fulton v. Chicago, Rock Island & Pacific Railroad Co.

• Decision Date: 27 April 1973
• Docket Number: 72-1376.,No. 72-1344,72-1344
• Citation: 481 F.2d 326
• Parties: R. H. FULTON d/b/a R. H. Fulton, Contractor, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Defendant-Appellant-Appellee, and Soo Line Railroad Company, Defendant-Appellee (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

481 F.2d 326 (1973)

R. H. FULTON d/b/a R. H. Fulton, Contractor, Plaintiff-Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Defendant-Appellant-Appellee, and Soo Line Railroad Company, Defendant-Appellee (two cases).

Nos. 72-1344, 72-1376.

United States Court of Appeals, Eighth Circuit.

Submitted March 14, 1973.

Decided April 27, 1973.

Rehearing and Rehearing Denied June 4, 1973.

COPYRIGHT MATERIAL OMITTED

George C. Chapman, Dallas, Tex., for Fulton, etc.

Wendell E. Koerner, Jr., St. Joseph, Mo., for Soo Line.

Thad C. McCanse, Kansas City, Mo., for Chicago, Rock Island & Pacific R. R. Co.

Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 4, 1973.

MATTHES, Chief Judge.

This case stems from the damages accruing to the shipper, R. H. Fulton, from the derailment of a train transporting his equipment. Fulton appeals from the judgment entered upon jury verdicts for the originating carrier, Soo Line Railroad Soo and a connecting carrier, Chicago, Rock Island & Pacific Railroad Rock Island. Rock Island has also appealed from the judgment entered upon a jury verdict for Fulton on Rock Island's counterclaim.

Fulton is a pipeline contractor who, upon completing a job in Minnesota, contracted with Soo to transport his equipment from Thief River Falls, Minnesota, to the Southwest. Flat cars were diverted to a siding where Fulton's employees, under the supervision of Soo's inspector, loaded the equipment onto the cars and secured it for transit. It was and is a hotly contested question whether Soo's employee was an active supervisor or passive inspector. Also during the loading, a safety bolt was omitted from the counterweight rack despite a warning plate on the machine that the bolts should be inserted before transporting the machine. According to controverted evidence, this could have allowed the rack to drift out in transit. However, it was also hotly contested whether this caused the accident, or whether the cause was loose cabling of the equipment allowing the entire machine to shift.

After Soo's inspection "bad ordered" two cars for loose cabling, the other eight departed Thief River Falls. At Minneapolis, Soo connected with a non-party carrier, the Minneapolis, Northfield and Southern Railway, which transported the cars to a connection with Rock Island at Northfield, Minnesota.

Rock Island was to transport the cars to a connection with the terminating carrier, the Southern Pacific, but, unbeknownst to the crew, one of the cars carrying Fulton's equipment struck the Mill Grove Bridge near the terminal point at Trenton, Missouri. After a rollby inspection at night at Trenton resulted in no discovery of anything amiss, a new Rock Island crew departed Trenton, but after a few miles a machine on the third of Fulton's cars struck Bridge 4194 causing the derailment and the collapse of the bridge.

Fulton then filed this suit¹ against Rock Island² and filed an amended complaint also naming Soo. The complaint laid two counts against each carrier, one under the Carmack Amendment, 49 U.S. C. § 20(11), and one in common law negligence. Rock Island counterclaimed for the damages to its bridge.

Soo initially moved to quash service, contending Fulton's attempt to effect service through the Missouri long arm statute was ineffectual to confer personal jurisdiction over Soo in this cause. After a hearing at which Fulton showed Soo's activity in the loading, the court denied the motion and held the service conferred jurisdiction. Fulton v. Southern Pac. Co., 320 F.Supp. 45 (W.D.Mo. 1970). However, when the cause was submitted, the court declined to submit the Carmack Claim against Soo, apparently on the theory that the long arm service was adequate only as to the negligence count.

The primary issue of fact litigated at trial was the cause of the accident. While Fulton did not deny that the safety bolt was omitted, it contended the counterweight nevertheless would not drift and that the cause of the accident was faulty cabling pursuant to Soo's instructions allowing the load to shift and the failure of Rock Island to observe these errors upon inspection. Alternatively, Fulton contended Soo was responsible for the loading and thus was responsible for the omission of the safety bolt, and that Rock Island was contributorily negligent in not observing the missing bolt and not taking ordinary precautions for a wide load which would have revealed the counterweight had drifted. The carriers, of course, insisted Fulton was at fault for omitting the safety bolt, that they had conducted their inspections with ordinary care, and that the drifting counterweight caused the accident.

After a five week trial, the case went to the jury. After one day's deliberation, the jury requested and received further explanation of the verdict form allowing them to find for Rock Island on Fulton's claim and for Fulton on Rock Island's counterclaim. Neither party had previously objected to this verdict form as inconsistent and neither objected to it at this time. Shortly thereafter the jury returned a verdict for Soo on the single limited negligence count submitted to them as to Soo and announced they were deadlocked on the Fulton-Rock Island claims. The court thereupon charged them to try again to reach a verdict and, after further deliberation, the jury returned a verdict on the form they earlier sought to have explained. Consequently, Judge Duncan entered judgment for Fulton on Rock Island's counterclaim and for the carriers on Fulton's claims. The court denied the posttrial motions by Fulton and Rock Island for judgment n. o. v. and by Fulton for a new trial, and these appeals followed.

I. FULTON'S APPEAL AS TO SOO

As noted above, Fulton's amended complaints naming Soo as a defendant pleaded causes of action against Soo both under the Carmack Amendment and in common law negligence, but the trial court declined to submit the Carmack issue to the jury. While we are directed to no precise statement in the record that this ruling stemmed from a conclusion the court possessed in personam jurisdiction as to the negligence count but not as to the Carmack claim, that apparently was the court's decision because the only reason pressed by Soo to pretermit submission of the claim to the jury was its contention the court lacked in personam jurisdiction.³ Indeed, since Soo clearly comes within the plain language of the Carmack Amendment even if it was not itself negligent,⁴ personal jurisdiction is the only theory we can ascribe to support the ruling. Accordingly, we turn to that question.

Fulton made service pursuant to Rule 4(e), Fed.R.Civ.P., by utilizing the provisions of the Missouri long arm statute, § 506.500 V.A.M.S. That statute provides:

"506.500. Actions in which outstate service is authorized

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

(3) The commission of a tortious act within this state;

(4) The ownership, use, or possession of any real estate situated in this state;

(5) The contracting to insure any person, property or risk located within this state at the time of contracting.

2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section."

Soo contends that because it made and performed this contract outside Missouri and owns no Missouri trackage the only long arm provision possibly applicable to this case is § 506.500(1)(3): "The commission of a tortious act within this state Missouri." Soo then advances two alternative arguments why this subsection is also inapplicable.

First, Soo submits the language of the subsection limits its application to actions occurring within the boundaries of Missouri. Pointing out that its allegedly tortious conduct — loading the railcars — occurred in Minnesota, Soo concludes the provision is inapplicable.

Second, Soo aserts Fulton's common law negligence claim is preempted by the Carmack Amendment, leaving only his Carmack count as stating a viable claim. Soo then asserts the Carmack count rests on the interstate contract of carriage, that it therefore sounds in contract rather than tort, and therefore that § 506.500(1)(3) is inapplicable.

In addition, Soo contends that even if § 506.500 is not inapplicable by its own interpretation, the exercise of personal jurisdiction in this case would contravene due process because Soo does not have the required "minimum contacts" with Missouri. We shall discuss these seriatim.

First, Judge Duncan was clearly correct in holding that Missouri caselaw construes the phrase "commission of a tortious act within this state" to include extraterritorial acts producing actionable consequences in Missouri. Missouri ex rel. Deere & Co. v. Pinnell, 454 S.W. 2d 889 (Mo.Sup.Ct.1970) (en banc); Missouri ex rel. Apco Oil Co. v. Turpin, 490 S.W.2d 400 (Mo.App.1973). Accord, Buckley v. New York Post Corp., 373 F. 2d 175 (2nd Cir. 1967); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961); Ehlers v. United States Heating & Cooling Mfg. Corp., 267 Minn. 56, 124 N.W.2d 824 (1963). Contra, Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 209 N.E. 2d 68, 78-81, cert. denied, sub nom, Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965). It is therefore irrelevant to the statute's applicability that Soo's overt activity was confined to Minnesota.

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