Illinois Cent. R. Co. v. Rogers

• Decision Date: 19 November 1917
• Docket Number: 19702
• Citation: 116 Miss. 99,76 So. 686
• Parties: ILLINOIS CENT. R. CO. v. ROGERS & HURDLE
• Court: Mississippi Supreme Court

76 So. 686

116 Miss. 99

ILLINOIS CENT. R. CO. v. ROGERS & HURDLE

No. 19702

Supreme Court of Mississippi

November 19, 1917

Division A

APPEAL from the circuit court of Marshall county, HON. J. L. BATES Judge.

Suit by Rogers & Hurdle against the Illinois Central Railroad Company. From a judgment for plaintiffs, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Mayes Wells, May & Sanders, for appellant.

The first question to which we direct the attention of the court is: Was this shipment moving from New Albany, Mississippi into and through the city of Memphis, Tennessee, in order to reach its destination at Leland, Mississippi, over two different lines of connecting carriers, an interstate shipment, subject to and to be controlled by the Act of Congress and the decisions of the Federal courts?

We maintain that it was, and that a shipment from one point to another, both within the state, over connecting lines, which necessarily pass through a portion of another state, is an interstate shipment, within the meaning of the Federal Act as amended. See the following authorities: Hanley v. R. R. Co., 47 L.Ed. (U.S.) 333; Lord v. Steamship Co., 26 L.Ed. (U.S.) 224; Steamship Co. v. R. R. Co., 18 F. 10; Warehouse Co. v. R. R. Co., 41 N.W. 1047; Sternberger v. R. R. Co., 2 L. R. A. (N. S.) 105; Liebengood v. R. R. Co., 28 L. R. A (N. S.) 985; C. B. Co. v. R. R. Co., 132 P. 975.

That the shipment in question was over two connecting lines and necessarily passed into and out of the city of Memphis, Tennessee, in the course of transportation from the initial point at New Albany, Mississippi, to its destination at Leland, Mississippi, abundantly appears, from the record, and if upon the authorities cited supra, it is adjudicated to have been an interstate shimpent, the rights of the parties to the contract of affreightment must be governed and controlled exclusively by the Act of Congress regulating commerce between the states, and the decisions of the Federal Courts construing those acts. Express Co. v. Croninger, 37 L.Ed. (U.S.) 314; R. R. Co. v. Miller, 57 L.Ed. (U.S.) 323; R. R. Co. v. Harriman, 57 L.Ed. (U.S.) 6900; Express Co. v. Burke and McGuire, 61 So. 212; Jones v. Express Co., 61 So. 165; R. R. Co. v. Woodruff Mills, 62 So. 171; R. R. Co. v. Mugg, 50 L.Ed. (U.S.) 1011; R. R. Co v. Abiline Co., 51 L.Ed. (U.S.) 553; American Packing Co. v. U.S. 52 L.Ed. (U.S.) 681; ) R. R. Co. v. Carl, 57 L.Ed. 683; Hart v. R. R. Co., 28 L.Ed. (U.S.) 717; R. R. Co. v. U.S. 215 Fed, 380; R. R. Co. v. U.S. 215 F. 380; R. R. Co. v. Kirby, 56 L.Ed. (U.S.) 1033; Express Co. v. N. M. Co., 57 L.Ed. (U.S.) 600; R. R. Co. v. Rankin, 241 U.S. 319; R. R. Co. v. Prescott, 240 U.S. 632; G. F. & A. R. R. Co. v. Blish Milling Co., 241 U.S. 190; R. R. Co. v. Wallace, 56 L.Ed. (U.S.) 516; Berwind-White, etc., Co. v. Steamship Co., 183 F. 257; Cobb v. Brown 193 F. 958; Spola v. R. R. Co., 92 A. 379; R. R. Co. v. Carl (U. S.), cited supra.

It has been held by the supreme court of the United States, and by many other Federal courts, that a provision in a live stock contract, or bill of lading, covering an interstate shipment, to the effect that as a condition precedent to any right to recovery for damage for delay, loss or injury to the stock, the shipper must give notice in writing of his claim therefor before the stock are moved and mingled with other stock, or within a specified time, ranging from one day to thirty days, was valid and binding upon the shipper, and must be complied with and that failure to do so, would bar any right to recover damages for any breach of the contract. R. R. Co. v. Harriman, cited supra; R. R. Co. v. Varnville Fur. Co., 59 L.Ed. (U.S.) 1137; R. R. Co. v. Robinson, 58 L.Ed. (U.S.) 901; R. R. Co. v. Moore, 58 L.Ed. (U.S.) 906; R. R. Co. v. Cranmer, 58 L.Ed. (U.S.) 697; R. R. Co. v. Hooker, 58 L.Ed. (U.S.) 868; M. T. Co. v. R. R. Co., 107 Fed. Inman v. R. R. Co., 159 F. 960; Clegg v. R. R. Co., 203 F. 971; Kidwell v. R. R. Co., 208 F. 1; Smith v. R. R. Co., 87 S.W. 9; Carr v. R. R. Co., 48 L.Ed. (U.S.) 1053; R. R. Co. v. Phillips, 87 P. 470; I. C. R. R. Co. v. Davis, 72 So. 874.

In the light of the Federal decisions therefore, it cannot be questioned that if this was an interstate shipment all state laws which declare contracts invalid, which require the bringing of an action within less than the statutory period, were superseded by the Federal law. Ingram v. Weir, 166 F. 328; R. R. Co. v. Soper, 50 F. 879; Express Co. v. Caldwell, 22 L.Ed. (U.S.) 556; 6 Ross notes to U. S. Reports, 420; Cox v. R. R. Co., 49 N.E. 97, cited in Harriman case; 6 Cyc. 508 cited in Harriman case; I. C. R. R. Co. v. Davis, 72 So. 874, cited supra.

There remains to be considered by this court, section sixteen of the contract of affreightment, which requires actions for damages to property to be brought within six months from the date of delivery at its destination. The record of this case shows that this action was not brought until after the expiration of nine months or more after the date of the delivery of the property at its destination, and section 15 of the shipping contract was especially pleaded by the defendant in the court below in bar of this action.

In the case of Howard v. Chicago, etc., R. R. Co. (Mo. App.), 184 S.W. 906, the court held that when goods are shipped between points in the same state, and in order to reach the carrier's yards at destination, they are moved into and out of another state, the shipment is in interstate commerce so as to render valid a stipulation requiring the action for damages to the property to be bought within six months from the date of delivery at its destination. Under the Carmack amendment a carrier may, by contract, require an action against it for loss or injury to an interstate shipment, to be brought within a reasonably stated time. Nashville, etc., R. R. Co. v. Truitt Co., 86 S. E. (Ga.) 421; Ray v. M. K. & T. Co., 133 P. 847; Miller v. Atchinson, etc., R. R. Co., 156 P. 780; Harrington, etc., R. R. Co. v. Wichita, etc. R. R. Co., 156 P. 631; M. K. & T. R. R. Co. v. Harriman, 57 L.Ed. (U.S.) 690.

A condition in a contract for an interstate carriage of live stock, that a carrier should not be answerable for loss or damage unless action was begun within six months, is reasonable and not precluded by the Carmack Amendment. Baldwin v. Chicago, etc., R. R. Co., 156 N.W. 17 (Ia.) ; Enright v. Atchinson, etc., R. R. Co., 152 P. 629; Sims v. M. etc., Ry, Co., 163 S.W. 275; Thompson v. Atchinson, etc., R. R. Co., 185 S.W. 1145; Donoho v. M., etc., R. R. Co., 187 S.W. 140; St. L., etc., R. R. Co. v. Pickens, 151 P. 1055; St. L., etc., R. R. Co. v. Tallifaero, 156 P. 359.

The stipulation for an interstate transportation of property by a carrier requiring suit for damages thereto to be brought within six months after the cause of action accrues, is to be determined under the common law, regardless of the statute of limitations of the state in which the action is begun. St. L., etc., R. R. Co. v. Patterson, 156 P. 216 Reported in Advance Sheets only.

It therefore appears, that the stipulation in the contract of affreightment which is under consideration in this case, was a valid stipulation and it also appears that the requirement that any suit for damages under the contract should be filed within a period of six months from the time of the delivery of the shipment, was not complied with and we respectfully submit that this failure on the part of the plaintiff in the court below to observe the requirements of the contract, was a bar to his right of action.

Coming now to a consideration of the claim made in the court below, that the provisions of the shipping contract paragraphs 13 and 16, had been waived by the defendant, we respectfully submit that the highest court in the land has decided that a carrier has no right to waive any of the provisions in its contract for interstate shipments, and we call the court's attention to the case of. G. F. A. R. R. Co. v. Blish Milling Co., 241 U.S. 190, decided May 9, 1916, wherein the following language appears: "It is urged, however, that a carrier in making misdelivery converted the flour and this abandoned the contract, but the parties could not waive the terms of contract under which the shipment was made pursuant to the federal act, nor could a carrier by its conduct, give the shipper the right to ignore these terms which were applicable to that contract and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariff's and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. R. R. Co. v. Kirby, 225 U.S. 135; R. R. Co. v. Carl, Supra; R. R. Co, v. Robinson, 233 U.S. 173; R. R. Co. v. Prescott, supra. We are not concerned in the present case with any question save as to the applicability of the provision and its validity, and we find it to be both applicable and valid. Effect must be given to it. See, also, Clegg v. R. R. Co., 203 F. 971; Assurance Co. v. Building Assn., 46 L.Ed. (U.S.) 213; Sullivan v. Ins. Co., 94 P. 676; Jennings v. Smith, 106 F. 139; R. R. Co. v. Kirkham, 65 P. 261; McElvain v. R. R. Co., 180 S.W. 1018; Phillips v. R. R. Co., 59 L.Ed. (U.S.) 774; R. R. Co. v. Kirby, 56 L.Ed. (U.S.) 1033; R. R. Co. v. Robinson, 58 L.Ed. (U.S.) 901; Bannaka v. R. R. Co., 186 S.W. 7; Olivet Bros. v. R. R. Co. 96 A. 584.

We, therefore, respectfully submit that on the authorities and on the undisputed facts which appear in this record, the judgment of the court below should be reversed and judgment entered here in favor of the appellant.

Lester G. Fant, for appellee.

Our contention is...