Johnson Grain Company v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 16 February 1914 |
| Citation | 164 S.W. 182,177 Mo.App. 194 |
| Parties | JOHNSON GRAIN COMPANY, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Warner Dean, McLeod & Langworthy for appellant.
E. H Batson for respondent.
This action was begun before a justice of the peace of Blue township, Jackson county, to recover damages resulting from the loss of wheat shipped by plaintiff from Johnson Nebraska, to Kansas City, over defendant's railway, under a standard form of order bill of lading approved by the Interstate Commerce Commission. A trial in the circuit court ended in a verdict and judgment for defendant which afterward was set aside by the court and a new trial ordered on the ground of error in the instructions. Defendant appealed from the order.
Our review of the case should not be restricted, as plaintiff contends, to the question of the propriety of the expressed reason for awarding the new trial.
The pertinent statutes (sections 2038 and 2023, Revised Statutes 1909) relating to the right to appeal from such order, require us to affirm the judgment if the stated reason be found sufficient, but if it be found insufficient, "the verdict must stand and the costs of another trial be avoided in the absence of affirmative showing by the party in whose favor the new trial was granted, that it was properly set aside on other grounds." [Ittner v. Hughes, 133 Mo. 679, 34 S.W. 1110; Haven v. Railway, 155 Mo. 216, 224, 55 S.W. 1035.] An error which cannot be said to have been prejudicial to any right of the losing party cannot serve as a valid reason for setting aside the verdict and where, as we shall show in the instant case, the court should have sustained the defendant's demurrer to the evidence, an error in the instructions to the jury cannot be considered as sufficient ground for an order setting aside the verdict.
"In such circumstances, just as formerly under the old practice, the only grounds on which this court will interfere, are for errors (that is judicial errors) or where there is no basis in the evidence on which a verdict for plaintiff should be permitted to stand." [Graney v. Railway, 157 Mo. 666, 678, 57 S.W. 276; Kelley v. Railways Co., 153 Mo.App. 114, 132 S.W. 269.]
The evidence of plaintiff tends to show that a quantity of wheat was lost during the transportation of a carload shipped by plaintiff. The demurrer to the evidence presents a number of interesting questions but as our solution of one of them is fatal to plaintiff's alleged cause of action, we shall pass the others without special mention.
Among the stipulations in the bill of lading is one which provides:
There is no proof of compliance with this requirement and this suit was not begun until long after the expiration of the prescribed time. This was an interstate shipment, falling within the operation of the Carmack Amendment of the Hepburn Act. That act as amended, which requires a common carrier to issue a receipt or bill of lading for property received for transportation from a point in one State to a point in another, is held by the Supreme Court of the United States to cover the entire field of the liability of interstate carriers and to supersede and exclude the exercise of the police power of a State to deal with the subject. [Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148; Railway v. Harriman, 227 U.S. 657, 672.] The precise question before us was determined in the Harriman case, where a similar stipulation was held to be valid. We quote from the opinion:
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