Harrington v. The Missouri Pacific Railroad Company

• Decision Date: 12 March 1927
• Docket Number: 26,890
• Citation: 254 P. 379,123 Kan. 35
• Parties: R. E. HARRINGTON, Appellee, v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Kansas Supreme Court

254 P. 379

123 Kan. 35

R. E. HARRINGTON, Appellee, v. THE MISSOURI PACIFIC RAILROAD COMPANY, Appellant

No. 26,890

Supreme Court of Kansas

March 12, 1927

Decided January, 1927.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

COMMERCE -- Interstate Shipments -- Continuous Shipment Under One Consignment -- Attorney's Fees. Wheat was shipped from Shelton, Neb., to Baker, Kan., and there unloaded into the consignee's elevator under a schedule giving him the privilege of shipping it within a year to Atchison, Kan., without further charge. The next day he loaded a like quantity of wheat from his elevator, together with a small amount additional, and shipped it to Atchison, the only further charge being for such additional amount, which was paid. He recovered a judgment against the carrier for $ 47.02 because of a shortage in the delivery at Atchison, together with $ 50 as an attorney's fee allowed by the Kansas statute. It is held that the shipment was interstate, and for that reason the Kansas statute did not apply and the allowance of the attorney's fee was error.

W. P. Waggener, O. P. May, both of Atchison, and T. M. Van Cleave, of Kansas City, for the appellant.

William K. Ward and Grant W. Harrington, both of Kansas City, for the appellee.

OPINION

MASON, J.:

R. E. Harrington sued the Missouri Pacific Railroad Company for a shortage of wheat shipped to Atchison, Kan., alleging that 124,800 pounds was shipped and only 121,850 pounds delivered, negligence not being alleged. He recovered a judgment for $ 47.02 on account of the shortage and for $ 50 as an attorney's fee. The judgment is not as a whole appealable, because less than $ 100 is involved, but the defendant appeals on the ground that the case involves questions of federal law. (R. S. 60-3303.) The questions to be determined are therefore necessarily confined to those relating to the federal constitution or statutes. ( Griggs v. Hanson, 86 Kan. 632, 121 P. 1094.)

The wheat shipped to Atchison weighed 124,800 pounds. The claimed shortage amounted to 2,950 pounds. The defendant claims that of this 124,800 pounds all but 16,800 pounds was in the course of an interstate shipment. No effort was made to show that the shortage occurred in one part of the shipment rather than the other. The defendant makes the contention that nearly eight-ninths of the wheat was an interstate shipment and therefore no attorney's fee should have been allowed, the state statute on the subject (R. S. 66-259) not being applicable to losses in the course of interstate commerce. ( Atchison & Topeka Ry. v. Harold, 241 U.S. 371, 378, 60 L.Ed. 1050, 36 S.Ct. 665.) The plaintiff contends that the entire shipment was intrastate.

The question whether the shipment, or a large part of it, was interstate depends upon the effect in that regard of these facts, which are not in dispute:

On January 18, 1924, a car of wheat was delivered at the plaintiff's elevator at Baker, Kan., and unloaded into it. This wheat was billed and shipped from Shelton, Neb., and the plaintiff, the consignee, had the privilege for one year of storing, mixing or milling in transit at Baker, and sending the wheat or its products on to Atchison, without any charge other than the amount paid on delivery at Baker. The shipment to Atchison was made the next day. Of the wheat shipped from Baker to Atchison, 108,000 pounds was moved by the carrier to Atchison without additional charge because of the privilege already referred to. The charge for the shipment of the other 16,800 pounds was 10 1/2 cents a hundred, which was paid. The 108,000 pounds was not the identical wheat shipped from Nebraska, but was grown in Kansas and had never been out of the state. It was, however, loaded into the car from the plaintiff's elevator into which the wheat from Nebraska had been unloaded. The old bill of lading had been surrendered, and a new one was issued, which contained these words, inserted by the plaintiff:

"108,000 lbs. origin Shelton, Neb., 27 1/2 c. paid at Baker, Kansas, balance rate to Atchison or K. C. free. 16,800 flat Baker to Atchison, Kansas 10 1/2 c. 124,800 total weight."

The plaintiff contends that the shipment from Baker to Atchison was intrastate. In the brief in his behalf it is said:

"In the case at bar there was no reconsignment of the original shipment of wheat moving from Shelton, Nebraska, at Baker Kansas. The bill of lading covering the shipment of wheat from Shelton, terminated and was surrendered by the plaintiff at Baker, Kansas, January 18th, 1924. It then and there lost all of its force and effect. The movement of the new shipment of wheat from Baker, Kansas, to Atchison, Kansas, on the following day was under a new bill of lading, and a separate and distinct contract of shipment. It was truly Kansas wheat in a local Kansas movement, there being no grain in the shipment that had been received by plaintiff in shipment from points beyond the boundaries of the state of Kansas. There was no reconsignment of this shipment, but by reason of the provisions of defendant's published tariffs and by reason of...