Kiff v. Atchison

• Decision Date: 03 July 1884
• Citation: 32 Kan. 263,4 P. 401
• Court: Kansas Supreme Court
• Parties: G. B. KIFF v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

4 P. 401

32 Kan. 263

G. B. KIFF v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY

Supreme Court of Kansas

July 3, 1884

Error from Reno District Court.

THE nature of the action, and the facts, are stated in the opinion. At the January Term, 1884, after plaintiff Kiff had introduced his evidence, the defendant Company demurred thereto, on the ground that the evidence does not prove or tend to prove any cause of action against the defendant. The court sustained the demurrer, discharged the jury, and rendered judgment for costs against the plaintiff. New trial denied. Kiff brings the case to this court.

Judgment affirmed.

James McKinstry, for plaintiff in error.

A. A Hurd, C. N. Sterry, and W. C. Campbell, for defendant in error.

HURD J. All the Justices concurring.

OPINION

HURD, J.:

The plaintiff below, the plaintiff in error here, commenced this suit before a justice of the peace of Reno county, to recover damages by breaking of stoves, alleged to have been transported from Emporia to Hutchinson by the defendant, as a common carrier.

The bill of particulars is as follows:

"G B. Kiff, plaintiff in the above-entitled action, complains of the defendant, the Atchison Topeka & Santa Fe railroad company, a corporation duly organized and existing under the laws of Kansas, for that whereas, the defendant undertook and agreed with plaintiff to carry from the city of Emporia to the city of Hutchinson, in the state of Kansas, in the month of May, 1883, three cook stoves: plaintiff avers that defendant so carelessly and negligently handled said stoves while in its possession as to break and damage them, to the damage of the plaintiff in the sum of twenty-five dollars. Plaintiff also avers that the defendant charged him, for hauling said stoves, the sum of two dollars in excess of the legal rate and schedule rate of said company. Wherefore, plaintiff prays that he have judgment against defendant for the sum of $ 27, and costs of suit."

On the trial, the justice of the peace rendered judgment in favor of the plaintiff for $ 24, and costs of suit. The defendant appealed to the district court of Reno county, and the case was tried in that court at the January term, 1884, before the court and a jury; and after the plaintiff had introduced his evidence and rested his case, the defendant demurred on the ground that the evidence does not prove or tend to prove any cause of action against the defendant. The court sustained the demurrer, discharged the jury, and rendered judgment against the plaintiff for costs. The plaintiff filed his motion for a new trial, which was overruled, and made his case for the supreme court, which contains all the evidence and proceedings in the court below, and brings the case to this court by petition in error.

The evidence shows that on April 28th, 1883, the Cleveland Cooperative Stove Company, of St. Louis, delivered to the Missouri Pacific railway company, in St. Louis, the stoves in question, to be by it transported to Hutchinson, Kansas, and there delivered to plaintiff. The railroad company, on delivery of the stoves, delivered to the shippers a duplicate receipt, of which the following is a copy:

"ST. LOUIS, April 28th, 1883.

"Received from the Cleveland Cooperative Stove Company, St. Louis branch, 2900 Eleventh street, by Mo. Pac. R. R., the following property, to be delivered in like good order, as addressed, without delay, at consignor's risk:

FOR G. B. KIFF, ESQ., HUTCHINSON, KANSAS.

Articles.

Marks.

3 cooking stoves.

K.

3 stove sections, weight 690, W.

....

Owner's risk.

"This duplicate dray ticket is sent you as a memorandum by which to check off goods. If the stoves, bundles, pieces, etc., do not agree with this, or the freight bill is overcharged, please return to us your freight bill at once, with this, noting thereon the charges, and we will attend to the matter with pleasure promptly."

This receipt is the only contract for transportation of the stoves shown by the evidence, and under it they were transported and on their arrival in Hutchinson were found to be broken and damaged. The evidence shows that the stoves were carried by the Missouri Pacific railway company over a portion of its line and delivered to the San Francisco railroad company, which carried them to Emporia, and there delivered them to defendant, which carried them to Hutchinson. Each of these connecting lines of transportation is entitled to the benefit of the special...