Hutchings

• Citation: 84 Kan. 479,114 P. 1077
• Decision Date: 08 April 1911
• Docket Number: 16,923
• Court: United States State Supreme Court of Kansas
• Parties: HUTCHINGS, SEALY & CO., a Partnership, etc., Appellants, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellee

114 P. 1077

84 Kan. 479

HUTCHINGS, SEALY & CO., a Partnership, etc., Appellants, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellee

No. 16,923

Supreme Court of Kansas

April 8, 1911

Decided January, 1911.

Appeal from Labette district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LAW OF ANOTHER STATE -- Determination by Court or Jury. A question as to what is the law of another state, although one of fact, is ordinarily to be determined by the court without the intervention of the jury.

2. LAW OF ANOTHER STATE -- Same. Where the question as to what is the law of another state depends upon the effect to be given to a decision made by its court of last resort and upon the interpretation of a statute, and all the reported decisions relating to the matter are admitted, and show a difference of judicial opinion, there is no occasion for evidence on the subject. Under such circumstances the question should be decided by the court practically as one of law.

3. BILL OF LADING -- Negotiability. A statute of Missouri provides that "all . . . bills of lading . . . issued . . by any . . . railroad . . . company . . . shall be . . . negotiable by written indorsement thereon, and delivery in the same manner as bills of exchange and promissory notes." (3 Rev. Stat. Mo. 1909, § 11,956.) In that state bills of lading were already negotiable in the sense of being transferable by indorsement and delivery so as to enable the assignee to sue in his own name. Held, that the statute makes them negotiable in the stricter meaning of the term--that is, it gives them the quality of investing an innocent purchaser with greater rights than those possessed by the original holder.

4. BILL OF LADING -- Issuance without Receipt of Goods -- Innocent Purchaser. Under such a statute a railroad company is bound by a bill of lading which has passed into the hands of an innocent purchaser, although no goods were in fact received by it.

5. BILL OF LADING--Crime to Issue without Receipt of Goods--Negotiability. The rule is not altered by the fact that the statute makes it a criminal offense for any agent of a railroad company to issue a bill of lading unless the goods have actually been received.

F. M. Harris, and Karnes, New & Krauthoff, for the appellants.

John Madden, and W. W. Brown, for the appellee.

MASON, J. BENSON, J.

OPINION

MASON, J.:

Hutchings, Sealy & Co. brought action against the Missouri, Kansas & Texas Railway Company, alleging that the plaintiffs had advanced money upon certain bills of lading which the defendant had issued, by its assistant general freight agent, without the actual receipt of the goods therein described, and asking judgment for the loss they had sustained in consequence thereof. Among other matters the defendant in its answer set out that the bills of lading referred to were issued in Missouri, and that therefore the rights of the parties are governed by the laws of that state; that there the law is that a bill of lading issued by the agent of a railroad company without the actual receipt of goods is void, and that the company can not be held liable thereon by way of estoppel or in any other manner; that this condition of the law results from statutory provisions, which are quoted in full, and from a decision of the supreme court, which is described only by the title of the case and the volume and page of the reports in which it is to be found, namely, Louisiana National Bank of New Orleans v. Laveille, et al., 52 Mo. 380. A demurrer to this portion of the answer was sustained by the district court. This ruling was reversed on appeal on the ground that the allegation as to the effect of the decision of the supreme court must be taken as true, inasmuch as the language of the decision was not pleaded and the Kansas courts can not take judicial notice of it. (Railway Co. v. Hutchings, 78 Kan. 758.) The plaintiffs then filed a reply which, in addition to a general denial, quoted in full the opinion in the Laveille case, and also one subsequently handed down by the Kansas City court of appeals of a contrary tendency, and added that the latter decision "states the law in the state of Missouri." A demurrer to this reply was sustained, and the plaintiffs appeal.

The plaintiffs advance the theory that, inasmuch as the reply states what the law of Missouri is, an issue of fact is raised upon which they are entitled to introduce evidence, regardless of the interpretation placed upon the Missouri decisions referred to. We do not accept this view. By the weight of authority, and, as we think, by the better reason, the court ordinarily determines the law of a sister state without the intervention of the jury, notwithstanding the question is one of fact. (4 Wig. Ev. § 2558; Christiansen v. Graver Tank Works, 223 Ill. 142, 150, 151, 79 N.E. 97, and authorities there cited; 7 A. & E. Ann. Cas. 74, note.) Here the pleadings set out all of the reported Missouri decisions on the subject. The case is not one where any substantial aid can be had from oral testimony. There is nothing essentially local in the matter involved. Courts elsewhere are divided as to the effect of the issuance of a bill of lading where no goods are received. Two conflicting views are entertained. The opinion of the court of appeals shows clearly that in Missouri there is no general acceptance of either. In such a situation there would be no advantage in calling Missouri lawyers as witnesses; they could only give their personal judgment on a debatable question of law. If the decision of the supreme court of Missouri really covers the matter in controversy, that ends the inquiry. Whether it does so is a question to be determined by the court. If it is found not to be conclusive, the court must then decide what shall be regarded as the law of Missouri in view of the decisions and statutes pleaded.

"That when it becomes necessary to establish the law of a foreign country it must be proved as facts are proved there is no doubt, but when, after such proof is given, the questions involved depend upon the construction and effect of a statute or judicial opinion, we think those questions are for the court and not questions of fact at all." ( Bank of China, etc., v. Morse, 168 N.Y. 458, 470, 61 N.E. 774.)

In Massachusetts a distinction is made upon grounds thus stated, which we regard as not sufficiently cogent to change the general rule:

"Where the evidence of foreign law consists entirely of statutes or reports of judicial decisions, the constructions and effects of the statutes and decisions are usually for the court alone. . . . Where the decisions are conflicting, or where inferences of fact must be drawn, the question of what the law is becomes one of fact." (Hancock National Bank v. Ellis, 172 Mass. 39, 49, 51 N.E. 207.)

The conflict of authority upon the question whether a railroad company can ever be held liable upon a bill of lading where it has received no goods is fully discussed in the opinion written at the former hearing of this case. (Railway Co. v. Hutchings, 78 Kan. 758.) Notes on the subject are to be found in 6 L.R.A. N.S. 302; 22 L.R.A. N.S. 828; 7 A. & E. Ann. Cas. 731; and 4 A. & E. Encycl. of L. 533. The supreme court of Missouri, in the decision already referred to (Louisiana National Bank of New Orleans v. Laveille, et al., 52 Mo. 380), approved and followed the authorities and the general reasoning upon the strength of which the doctrine has been established in many jurisdictions that a carrier is not liable upon a bill of lading, even to an innocent purchaser, unless the goods it describes have actually been delivered--authorities and reasoning which this court has found not persuasive. That decision therefore determines that the law of Missouri forbids a recovery by the plaintiff, unless a fair distinction can be made between that case and this. If so, it must be on one of the following theories: (1) That the Missouri statute referred to effects a change in the rule; (2) that, as the bill of lading involved in the Missouri case was issued by the agent of the owner of a ship, the rule established does not necessarily apply to such an instrument when issued by the agent of a railroad company; (3) that, even if it applies where a bill of lading is issued by an ordinary agent of a railroad company, it has no application here because the act of the assistant general freight agent was practically the act of the corporation itself.

The statute referred to was enacted in 1869, before the Laveille case was decided; but it was not involved in that decision, for the bill of lading there considered was issued at New Orleans, and although in fact Louisiana at the time had a similar statute, which has since been held not to change this rule (Henderson v. Louisville & N. C. R. Co., 116 La. 1047, 41 So. 252), no reference was made to it in the pleadings or the evidence, and the courts of Missouri do not take judicial notice of the statutes of other states (13 A. & E. Encycl. of L. 1058, note 4) or presume that they are the same as those of their own jurisdiction (13 A. & E. Encycl. of L. 1061, note 2). The statute contains these provisions:

"No . . . officer or agent of any railroad . . . company . . . shall sign or give any bill of lading . . . for any merchandise or property, by which it shall appear that such merchandise or property has been shipped on board of any . . . railroad car . . . unless the same shall have been actually shipped and put on board, and shall be at the time actually on board or delivered to such . . . car . . . to be carried and conveyed as expressed in such bill of lading.

"All . . . bills of lading issued or given by any . . . railroad . . . company, for goods, wares, merchandise,...