Kansas City Southern Railway Company v. Carl

Citation121 S.W. 932,91 Ark. 97
PartiesKANSAS CITY SOUTHERN RAILWAY COMPANY v. CARL
Decision Date14 June 1909
CourtSupreme Court of Arkansas

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

STATEMENT BY THE COURT.

This is an action to recover damages for loss of a box of household goods shipped from Lawton, Oklahoma, to Gentry, Arkansas. The suit was brought before a justice of the peace in Benton County, Arkansas, and judgment was rendered in favor of the plaintiff. The case was duly appealed to the Benton Circuit Court.

On a trial anew in that court, the plaintiff testified that on October 8, 1907, he delivered to the Chicago, Rock Island & Pacific Railway Company at Lawton, Oklahoma, two boxes and one barrel, containing household goods, and that he signed a contract and received a bill of lading. The goods were consigned to himself at Gentry, Arkansas. He received the barrel of goods, and also one of the boxes; but one of the boxes was never received. The value of the goods as testified to by the plaintiff exceeded the sum of $ 75.

The defense of the railway company was that the goods were shipped upon a contract between the plaintiff and the Chicago, Rock Island & Pacific Railway Company and its connecting carriers; that the defendant is one of the connecting carriers, and is entitled to the benefit of all the provisions of said contract; that said contract contained a stipulation that, in consideration that the plaintiff would receive the lower of two freight rates, in case of loss said goods should be valued at $ 5 per hundred weight. That all of the goods received weighed 400 pounds; that there was delivered to the plaintiff by the defendant 300 pounds of said goods.

The jury returned a verdict for plaintiff for $ 75, and the defendant has appealed from the judgment rendered.

Judgment affirmed.

Read & McDonough, for appellant.

Appellee entered into a contract limiting the liability, of which he had knowledge, not under coercion nor through fraud and imposition, but having full opportunity to read and understand it. The contract was legal and binding, and a verdict should have directed in favor of appellant. 50 Ark 406 and authorities cited; 87 Ark. 339; 114 S.W. 1052; 88 Ark. 594; 84 Ark. 423; 73 Ark. 112; 83 Ark. 502; 162 F. 585; 204 U.S. 505; 63 N.E. 245. Having had opportunity to read the contract, as appellee admitted, it was error to admit his testimony that he did not understand the contract. 159 F 960.

OPINION

HART, J. (after stating the facts).

Counsel for appellant urge that upon the undisputed evidence the court should have directed a verdict for appellant. They rely for a reversal on the clause in the contract with the initial carrier limiting the liability as to value in case of loss. They contend that the stipulations restricting the liability in case of loss were made for their benefit as well as for the benefit of the initial carrier, and base their contention on our decisions to that effect in the cases of St. Louis, I. M. & S. Ry. Co. v. Weakly, 50 Ark. 397, 8 S.W. 134; St. Louis & S. F. Rd. Co. v. Burgin, 83 Ark. 502, 104 S.W. 161, and cases cited. But in making their contention they have not taken into consideration the effect of the Hepburn amendment to the Interstate Commerce Act, which became effective on June 29, 1906, a date prior to the time the contract in question was made. That part of the Hepburn Act which applies to the present case is contained in section 20, which 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 laws."

"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 the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof."

The undisputed evidence shows that the initial carrier received the property for transportation from a point in one State to a point in another State, and the presumption, in the absence of evidence to the contrary, was, as will be seen from our decisions hereinafter referred to, that the goods were lost through the negligence of appellant, the last carrier.

The section of the Hepburn Act above quoted makes the carrier liable ...

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