Kansas City Southern Ry. Co. v. Carl

• Decision Date: 14 June 1909
• Citation: 121 S.W. 932
• Parties: KANSAS CITY SOUTHERN RY. CO. v. CARL.
• Court: Arkansas Supreme Court

121 S.W. 932

KANSAS CITY SOUTHERN RY. CO. v. CARL.

Supreme Court of Arkansas.

June 14, 1909.

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

Action by J. M. Carl against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for loss of a box of household goods shipped from Lawton, Okl., to Gentry, Ark. The suit was brought before a justice of the peace in Benton county, Ark., 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, Okl., 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, Ark. 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 cwt.; 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.

Read & McDonough, for appellant.

HART, J. (after stating the facts as above).

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. L., I. M. & S. Ry. Co. v. Weakly, 50 Ark. 406, 8 S. W. 134, 7 Am. St. Rep. 104; St. L. & S. F. R. 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 (Act June 29, 1906, c. 359, 34 Stat. 584 [U. S. Comp. St. Supp. 1907, p. 892]) to the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), 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 7, 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 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 the owners of such property, as may be evidenced...