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

• Decision Date: 20 December 1920
• Docket Number: No. 13412.,13412.
• Citation: 226 S.W. 1023,206 Mo. App. 56
• Court: Missouri Court of Appeals
• Parties: JORDAN v. CHICAGO, B. & Q. R. CO.

226 S.W. 1023

206 Mo. App. 56

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

No. 13412.

Kansas City Court of Appeals. Missouri.

December 20, 1920.

Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge.

Action by George Jordan against the Chicago, Burlington & Quincy Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 269 Mo. 281, 191 S. W. 70; 196 S. W. 417.

H. Nelson, of. St. Joseph, Palmer Trimble, of Keokuk, Iowa, Higbee & Mills, of Kirksville, and M. G. Roberts, of St. Louis, for appellant.

Fogle & Fogle, of Lancaster, for respondent.

TRIMBLE, J.

This case is before us on a second appeal by defendant. The first was disposed of as set out in Jordan v. Railroad, 196 S. W. 417. It is an action for damages sustained in an interstate shipment of horses from Lemons, Mo., to Buffalo, N. Y. The shipping contract was made with defendant (upon which line the shipment originated), on the 2d day of March, 1907, and the shipment was started on that day.

The horses were transported to Chicago over the defendant's line of railway, and from thence to Buffalo over the line of the Michigan Central Railroad Company. It is conceded they reached Chicago in due time and in good condition. The alleged delay and injury to the horses occurred on the line of the connecting carrier.

The shipping contract set up by defendant contained a provision stating that the railway company should not "be liable for loss or damage after delivery to any connecting line, nor for any loss or damage not incurred upon its own line."

In another part of the contract was a provision as to notice of claim for damages which reads as follows:

"It is further agreed that the said railway company shall in no case be liable for any loss or damage to said animals, unless a claim shall be made in writing by the owner or owners thereof, or his or their agents, and delivered to a general freight agent of the said railway company, or to the agent of said railway company at the station from which the animals are shipped, or to the agent at the point of destination, within ten (10) days from the time the said animals are removed from the cars. And in case of loss or damage upon any connecting line, such connecting line shall not be in any manner liable unless claim shall be made in like manner in writing to such general officer or agent of such connecting line."

Notice was not given within 10 days from the time the horses were removed from the cars, and this is one of the grounds upon which defendant insists its demurrer to the evidence should have been sustained.

As the contract and shipment were made prior to the act of March 4, 1915 (38 U. S. Stats. at Large 1196, c. 176 [Comp. St. §§ 8592, 8604a]), amending the Interstate Commerce Law so as to obviate the necessity of notice in certain circumstances, said amendment does not affect the rights of parties as fixed by the contract. Northern, etc., R. Co. v. Wall, Adm'r, 241 U. S. 87, 93, 36 Sup. Ct. 493, 60 L. Ed. 905. Hence the above provision is valid, and, if applicable under the law and the facts in this case, the failure to give such notice will defeat recovery. Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Hamilton v. Chicago, etc., R. Co., 177 Mo. App. 145, 164 S. W. 248.

On the former appeal a majority of the members of this court, while conceding the validity of a provision as to notice, held that it was not available to the initial carrier as a defense in this case, because a proper construction of the contract disclosed that the parties intended that notice was required to be given only to the line upon which the loss or injury occurred, and that as the loss or injury occurred on the connecting line and suit was against the initial carrier, the defense of want of notice was not available to it. It seems to the author hereof that, if it were allowable to consider the intention of the parties to the contract, such intention must be determined in the light of the circumstances, the entire contract, and all of its terms, and that the manifest intention was that whatever line was liable should have notice. The fact that the contract contained a separate and distinct, but void, provision that the defendant would not be liable if the loss or injury occurred on a connecting line ought not to, and does not, destroy that intention. The contract says the defendant "shall in no case be liable * * * unless a claim shall be made in writing," etc.; that such notice shall be delivered to the company's general freight agent, or to the agent at point of destination (none of whiten was done); and that if the loss or damage occurred upon the connecting line it should not be liable unless it was notified in like manner.

But under the federal law the contract of shipment executed by the initial carrier embodies the contract for transportation from point of origin to destination without regard to the intention of the parties. Texas, etc., R. Co. v. Leatherwood, 250 U. S. 478, 39 Sup. Ct. 517, 63 L. Ed. 1096; Missouri, etc., R. Co. v. Ward, 244 U. S. 383, 37 Sup. Ct. 617, 61 L. Ed. 1213. The federal statute enters into and forms a part of the contract as if it had been explicitly written into its terms. Northern, etc., R. Co. v. Wall, Adm'r, 241 U. S. 87, 91, 92, 36 Sup. Ct. 493, 60 L. Ed. 905. Hence the void provision that the defendant should not be liable for loss or damage not occurring on its own line should not be given any effect whatever, either in determining the liability of the defendant or in ascertaining the intention of the parties.

"Under the Carmack Amendment the several carriers must be treated, not as independent contracting parties, but as one system; and * * * the connecting lines become in effect mere agents whose duty it is to forward the goods under the terms of the contract made by their principal, the initial carrier." (Italics the author's.) Texas, etc., It. Co. v. Leatherwood, 250 U. S. 478, 480, 39 U. S. Sup. Ct. 517, loc. cit. 518, 63 L. Ed. 1096.

The provision that the railway company "shall in no case be liable * * * unless a claim shall be made in writing," etc., is valid; the law says the railway company is the principal in the work and obligation of transportation throughout the entire journey, and that the provision limiting liability of the principal to matters occurring on its own line is void. How, then, can this void provision destroy the valid provision above mentioned?

The fact that the contract also provides that in case of loss upon any connecting line such connecting line shall not be liable unless claim in like manner shall be made to it cannot, in my judgment, have any effect or influence upon the point under consideration, since a similar provision was in the contract in Chesapeake, etc., R. Co. v. McLaughlin, 242 U. S. 142, 143, 37 Sup. Ct. 40, 61 L. Ed. 207, and yet the Supreme Court held that the want of notice to the initial carrier was fatal to the recovery.

Again, it seems that under the rule announced by the majority view in the decision of this case on the former appeal, the initial carrier would be held liable if the injury was committed by the connecting carrier, but the latter would be absolved from liability although it was the real wrongdoer. The object of the federal act is not only to make the initial carrier responsible, no matter on whose line the injury occurs, but to establish "unity of responsibility," and the shipping contract "is not to be construed in one way with respect to the initial carrier and in another with respect to the connecting * * * carrier." Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190, loc. cit. 196, 36 Sup. Ct. 541, 544 (60 L. Ed. 948). In other words, the contract must be so construed as that, if sought to be enforced, liability or nonliability will be the same whether recovery be demanded of either the originating or terminal carrier. And in this case, not only must defendant be conclusively treated as having made a through contract, electing to treat the connecting carrier as its agent, but the petition pleaded that the defendant, "by and through its agents, servants, and employees, so negligently and carelessly conducted itself in the premises that said horses were not transported and delivered safely, within a reasonable time and in good condition." Consequently the case "must be treated as though the point of destination was on its [the defendant's] own line." Galveston, etc., R. Co. v. Wallace, 223 U. S. 481, loc. cit. 492, 32 Sup. Ct. 205, 207 (56 L. Ed. 516).

Under the decisions of the United States Supreme Court, a clause in the shipping contract, requiring presentation of a written claim, is "valid and controlling as to any liability arising from beginning to end of the transportation contracted for." (Italics mine.) Erie R. Co. v. Shuart, 250 U. S. 461, 39 Sup. Ct. 519, 63 L. Ed. 1088. In Baltimore, etc., R. Co. v. Leach, 249 U. S. 217, 39 Sup. Ct. 254, 63 L. Ed. 570, a void provision in the shipping contract was not allowed to prevail over, or have any effect upon, a valid provision as to notice, even though the void provision was the only thing on which the provision as to notice could operate.

If the view set forth in the foregoing is correct, the case should be reversed, and, in that event, it is unnecessary to pass upon the other matters complained of as error.

The foregoing was written and turned over to my associates as embodying my view of what should be done in the case. However, on the point hereinbefore discussed, they adhere to the view held by them on the former appeal, and take the position that, since such is the ruling of the court thereon, it should be followed, and the other points raised by the appeal should be considered and passed upon.

The shipment was loaded at Lemons shortly before 11 o'clock in the forenoon of March 2, 1907, reached Moulton Saturday afternoon, where they...