Graves v. Missouri Pac. R. Co.

• Decision Date: 17 December 1937
• Docket Number: No. 32651.,32651.
• Citation: 118 S.W.2d 787
• Parties: GRAVES v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

118 S.W.2d 787

GRAVES v. MISSOURI PAC. R. CO.

No. 32651.

Supreme Court of Missouri, Division No. 2.

December 17, 1937.

Motion for Rehearing Overruled May 3, 1938.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

Action by Via Graves against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thomas J. Cole, of St. Louis, Forrest P. Carson, and Ragland, Otto & Potter, all of Jefferson City, and Montgomery, Martin & Montgomery, of Sedalia, for appellant.

Wendell W. McCanles, of Los Angeles, Cal., for respondent.

TIPTON, Judge.

In the circuit court of Pettis county, Mo., respondent recovered a judgment against appellant in the sum of $10,000, for personal injuries received when appellant's freight train on which he was riding was derailed.

Respondent was in the employ of J. W. Morrison. Morrison owned six show horses which he exhibited at the American Royal Stock Show at Kansas City, Mo., in November, 1931, and at the close of that show these horses were being shipped from Kansas City to Chicago, Ill. The car in which the horses were being shipped was divided into stalls, three at either end of the car; the middle of the car was arranged to carry the trunks, beds of caretakers, sulkeys, saddles, and harness, and it was there that respondent and three other employees of Morrison rode. Respondent was employed to shoe the horses, but when not so engaged he was required to assist in taking care of them. As the train to which this car was attached approached Myrick, Mo., it was derailed, causing respondent to be seriously injured.

Appellant's main contention is that its demurrer to the evidence should have been sustained. Respondent's petition alleged that the operation and management of the train was under the direct control and supervision of appellant and that he (respondent) had nothing whatever to do with same; "that he was riding as an attendant of stock as aforesaid with the knowledge and permission of the said defendant (appellant) and was a passenger thereof."

Appellant's answer denies that respondent was a caretaker for the shipment of live stock, that he purchased at any time a drover's ticket before boarding appellant's train, that he signed the caretaker's contract, that he paid or offered to pay any sum whatsoever for transportation, or that he entered into any contractual relationship whatsoever for transportation on appellant's railroad. It stated that if respondent was riding in and with a car of live stock being transported by appellant from Kansas City, Mo., to Chicago, Ill., on November 22, 1931, as alleged in the petition, his presence was unlawful and in violation of the tariffs regulating the transportation of attendants of live stock transported in interstate commerce as approved by the interstate commerce commission, and the laws of Missouri relating thereto, and that he was a trespasser and not an attendant of live stock nor a passenger.

Appellant does not deny that the derailment was caused by its negligence, but contends that the relationship of carrier and passenger did not exist between it and respondent. As we view the pleadings in this case, the ultimate fact to be determined is: Was respondent a passenger at the time he was injured?

Appellant introduced in evidence as an exhibit a certified copy of a joint circular of the freight traffic department and passenger traffic department on file with the Interstate Commerce Commission. It provides that one caretaker is entitled to accompany shipment of one car of live stock, and if more than one caretaker accompanies the car, then tickets will be furnished the additional caretakers at the lowest one-way fare, and such tickets must be indorsed on the back showing names of attendants, name of shipper, number and date of freight waybill, point of origin, and point of destination. It also provides that, "attendant or attendants will be provided with regular live stock contract by the carrier's agent at shipping point, which, when properly executed, will be accepted by the conductor of the train on which the stock is handled as the authority for the free transportation of such attendant or attendants. Conductors in charge of train on which the stock is transported will certify in the space provided on the live stock contract for such certification, that such attendant or attendants actually accompanies the stock between the points where the stock was handled on his train."

There was also introduced a certified copy of interstate freight tariffs of appellant on file with the Interstate Commerce Commission. It contains the uniform live stock contract and sets out the regulations regarding free transportation, in conformity with the joint circular to which we have already referred.

This being an interstate shipment, it was governed by the Interstate Commerce Act and amendments thereto (49 U.S.C.A. § 1 et seq.). This act (49 U.S.C. A. § 6, par. 1) provides that every common carrier shall file with the Interstate Commerce Commission and print and keep open to public inspection schedules showing all rates, fares, and charges for transportation between points on its own route and points on routes of any other carrier. This act further provides that all contracts of shipment must be in writing, and no contract can be entered into between a carrier and a shipper that has not been approved by the commission. The object of the act is to provide equal facilities to all shippers; that is, to give every shipper the same service for the same rate. Any special contract entered into between a carrier and a shipper which is not open to all shippers is void. Adams Express Co. v. Groninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A.(N.S.) 257; Kirkendall v. Union Pac. Railroad Co. (C.C.A.) 200 F. 197; Miller v. Maine Central Railroad Co., 125 Me. 338, 133 A. 907, 47 A.L.R. 720; Cicardi Bros. Fruit & Produce Co. v. Pennsylvania Co., 201 Mo.App. 609, 213 S.W. 531; Thee et al. v. Wabash Railroad Co. (Mo.App.) 217 S.W. 566; Chicago & Alton Railroad Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033, Ann.Cas.1914A, 501; Norfolk Southern Railroad Co. v. Chatman, 244 U. S. 276, 37 S.Ct. 499, 61 L.Ed. 1131, L.R.A. 1917F, 1128.

We see, therefore, that under the tariff regulations approved by the Interstate Commerce Commission appellant and shipper Morrison could have entered into a contract for the shipment of horses to Chicago with one or four caretakers. As neither the original nor the duplicate contract was introduced in evidence, it will take a detailed statement of facts to determine the contract.

The deposition of John Starliper, taken on behalf of appellant, was introduced by respondent. Starliper testified that at the time of the derailment he was employed by J. W. Morrison as groom; that he was in charge of the car of horses; that riding in the car with him were Blaze Jackson, LeRoy Appel, and respondent, that the blank contract attached to the deposition was like the contract Daniels had given him, which was the contract for the shipment of the horses; that Daniels was a trainer of horses and an employee of J. W. Morrison; that the blanks in this exhibit were not filled out; that the contract Daniels had given him was lost in the wreck; that he did not examine it, "Just looked at it; it looked like the usual contract and put it in my pocket"; that the other caretakers did not have any tickets or contracts, "I had the contract for our transportation"; that the wreck occurred before the conductor came around to take up the contract; that it was customary for the conductor to take up the contract at a division point; that when asked if he signed the contract, he replied, "I don't just remember." On this point he testified: "Q. But it was signed by you or Mr. Daniels? A. Yes, I guess so. It was not signed by me. It was brought down to me to the car and given to me there." Also, "Those contracts are just made out and handed to the man in charge of the horses, who rides with the horses, and he (respondent) never signed it." He further testified: "Q. Did you have any sort of ticket or contract for your transportation? A. A contract, yes, I had the contract. Q. Did the rest of the party you have mentioned have any ticket or contracts. A. No, Sir, I had the contract for our transportation."

Respondent testified that he had no ticket; that the "boss" paid his fare; that he was told by Starliper to get into the car; and that before the train left Kansas City the conductor came to the car and took the names of the persons riding in the car.

In reviewing this evidence in the light most favorable to respondent, as we must do on ruling the demurrer to the evidence, it would be unfair to say that the amount paid for the transportation of the horses did not include the four caretakers. However, we will say the evidence shows that respondent had neither signed the contract, as required of a caretaker, nor had a ticket. Whether he could have signed the contract in transit, or whether a contract calling for four caretakers would have been sufficient to comply with the approved regulations without a ticket, we do not think necessary to decide.

We find nothing in the act that makes a trespasser of one who boards a train without first having obtained a ticket or pass for his passage. Violations of the Interstate Commerce Act and the amendments thereto subject the offenders to a fine not exceeding $5,000, and in some instances imprisonment not to exceed two years.

But irrespective of whether the rules and regulations of the Interstate Commerce Commission had been complied with, we do think that the relation of passenger and carrier existed between respondent and appellant. This is not a suit upon the contract of shipment; respondent was not a party to that contract; nor is it a suit for a violation of any provision of the Interstate Commerce Act. Under our laws, respondent was a passenger...