Jordan v. Chicago, B. & Q. R. Co.

• Citation: 269 Mo. 281,191 S.W. 70
• Parties: JORDAN et al. v. CHICAGO, B. & Q. R. CO.
• Decision Date: 20 December 1916
• Court: Missouri Supreme Court

191 S.W. 70

269 Mo. 281

JORDAN et al. v. CHICAGO, B. & Q. R. CO.

Supreme Court of Missouri, Division No. 1.

December 20, 1916.

Appeal from Circuit Court, Putnam County; G. W. Wanamaker, Judge.

Action by George Jordan and others against the Chicago, Burlington & Quincy Railroad Company. From judgment for plaintiffs, defendant appealed. Affirmed by Kansas City Court of Appeals, and certified. Retransferred to Kansas City Court of Appeals.

The following is the per curiam opinion of the court of appeals:

Plaintiff shipped a carload of horses from Lemon, Mo., to Buffalo, N. Y. The contract of shipment was with defendant, though the destination was beyond its line and the horses were transferred to another railway carrier at Chicago, Ill., and a new contract entered into with the latter company. Plaintiff brought an action for damages against defendant, and obtained judgment in the trial court.

There was a contract of shipment with defendant by which it appeared that there was an agreed valuation between the parties of $100 per animal, and that in no case should there be a liability on the part of defendant above that sum. This provision was treated as of no effect by the trial court as shown by its action on instructions and the amount of the judgment. By so doing the act of Congress, known as the Hepburn Act, as amended (U. S. Comp. St. 1913, § 8592, pars. 11, 12), was regarded as nullifying such provisions of the contract. That amendment reads as follows: "That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. `That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.'"

This statute has been construed by this court in Holland v. Railroad, 139 Mo. App. 702, 720, 123 S. W. 987, as disallowing such contracts in toto. But the Springfield Court of Appeals, in McElvain v. Railroad, 151 Mo. App. 126, 151-155, 131 S. W. 736, decided differently, holding that such amendment merely prevented the interstate carrier from exempting himself from liability for the negligence of the connecting carrier, and that it did not prevent a contract that its liability should not go above the valuation of the article shipped which had been agreed to by the shipper on sufficient consideration.

The trial court followed this court, and we will affirm the judgment. But as our decision is in conflict with that of the Springfield Court of Appeals in McElvain v. Railroad, the case will be certified to the Supreme Court for final adjudication.

The defendant likewise by its answer sought to raise a point involving the construction of the Constitution of the United States, and renewed this in its motion for new trial. Whether this question was properly raised under the rulings of the Supreme Court will be for it to determine.

O. M. Spencer, of St. Joseph, A. W. Mullins, of Linneus, Palmer Trimble, of Keokuk, Iowa, and M. G. Roberts, of St. Joseph, for appellant. N. A. Franklin, of Unionville, and Fogle & Fogle, of Lancaster, for respondents.

BOND, J.

I. This case was certified to this court by the Kansas City Court of Appeals in a per curiam opinion, setting out, in substance, that the action was one for damages suffered by a carload of horses shipped by the plaintiff from Lemon, Mo., to Buffalo, N. Y., under a shipping contract with the defendant, which transported the horses to Chicago, where they were delivered to another carrier under a new contract to take them to Buffalo, N. Y. The contract of shipment showed an...