Klink v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 04 January 1915
• Docket Number: 4126.
• Parties: KLINK et al. v. CHICAGO, R.I. & P. RY. CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

219 F. 457

KLINK et al. v. CHICAGO, R.I. & P. RY. CO. ^[1]

No. 4126.

United States Court of Appeals, Eighth Circuit.

January 4, 1915

John T Bottom and Milnor E. Gleaves, both of Denver, Colo., for plaintiffs in error.

Paul E Walker, of Topeka, Kan., and William V. Hodges, of Denver Colo., for defendant in error.

Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS District judges.

CARLAND Circuit Judge.

It is assigned as error that the trial court erred in rendering judgment in favor of the railway company, upon the pleadings: First, because it had no jurisdiction; second, because the pleadings did not warrant such a judgment. The action was commenced in the district court for the city and county of Denver, and was removed to the Circuit Court of the United States for the District of Colorado by the railway company. The amended complaint of plaintiffs in error alleged, in substance: That they were on February 12, 1908, the owners of 22,334 head of yearling wethers at Gallego, state of Chihuahua, republic of Mexico, and on said date entered into an agreement with the railway company for the transportation of said sheep from Gallego via El Paso, Tex., to Stockdale, Ill., there to be unloaded by the railway company and fed and fattened for the Chicago market, and then transported to the Union Stockyards, Chicago, Ill. That the consideration for the care and feeding of said sheep at Stockdale, Ill., over and above the transportation charge, was about $1 per head per ton on hay, corn, and screenings above the weekly market price of said feed. That as a part of said agreement the Railway Company represented to plaintiffs in error that said sheep would be ready for the Chicago market within 45 or 60 days after their arrival at the said feedyards of the railway company, and that said railway company had in its employ men thoroughly competent to care for and feed said sheep for the Chicago market. That in pursuance of said contract plaintiffs in error delivered said sheep to the railway company for transportation, consigning 11,310 head in the name of Klink and Simonson to Smith Bros., Commission Company, Union Stockyards, Chicago, Ill., and 11,024 head in the name of C. W. Trimble to Clay, Robinson & Co., to the same destination. That the Railway Company received and accepted said sheep in pursuance of said agreement and transported the same to its feedyards at Stockdale, Ill. That the Railway Company, its officers, agents, and employes wholly failed to give said sheep the proper care and attention, or to properly feed them, and wholly failed to carry out the terms of its said contract, and wrongfully failed to fatten said sheep and to get them ready for the Chicago market; and as a result of the want of care, as aforesaid, and by reason of the negligence of the defendant, its officers, agents, and employes in the care and feeding of said sheep, many of said sheep, exceeding 1,094 in number thereof died. That the remainder of said sheep, by reason of the failure and neglect of the defendant, its officers, agents, and employes to properly feed and care for them were reduced in flesh and injured and not fattened according to said agreement, and were damaged to such an extent that they were not marketable as agreed. That under and by virtue of the agreement between plaintiffs in error and the railway company, said sheep would have been fattened for market at a date prior to May 15, 1908, but that the majority of the sheep, because of the railway company's wrongful failure to properly feed and fatten said sheep, and because of their damaged condition thereby occasioned, were not and could not be marketed or otherwise disposed of as fattened sheep, until the latter part of June, 1908. That they were, on or about the last-mentioned date, sold at Chicago, and by the wrongful direction of the railway company the moneys received from the sale of said sheep was improperly paid to and the railway company wrongfully received the same, falsely representing that the moneys so received by them of the proceeds of the sale of said sheep, $18,980.93, was to cover freight charges, and $68,963.11 to cover its charges for the care, feeding, and fattening of said sheep. That by reason of the want of care and negligence on the part of the railway company, its officers, agents, and employes, and by reason of the wrongful appropriation and withholding of the money as alleged in the complaint, plaintiffs in error were damaged in the sum of $75,000. The plaintiffs then prayed judgment against the railway company for the sum of $75,000, with interest. The railway company filed an answer to this complaint.

For the sake of brevity it does not seem necessary to set forth all the allegations of the answer, which are quite lengthy, but only to set forth that part of the answer which, according to the brief of the railway company, justified the judgment below. In other words, it is not necessary to set forth those allegations of the answer which merely created an issue with the complaint, or which would require proof in order to be availed of as a defense. The answer of the railway company alleged that subsequent to the 12th day of February, 1908, plaintiffs in error tendered to the railway company for shipment at Texhoma, Okl., 22,334 head of yearling wethers, being the same animals mentioned in the complaint; that the railway company accepted said sheep for shipment to Chicago, Ill., by way of the town of Stockdale, Ill., and thereupon issued its certain live stock contracts in writing, which contracts were signed by the plaintiffs in error or their duly authorized agents. The answer further alleged:

'That at the time when the shipments of sheep alleged in the complaint were made, the defendant was a common carrier engaged in interstate commerce and subject to each and every of the provisions of the act of Congress approved February 4, 1887, entitled, 'An act to regulate commerce,' and all acts amendatory thereof. That under and by virtue of said act of Congress and all acts amendatory thereof, it had theretofore jointly with connecting carriers, issued and published and filed with the interstate Commerce Commission of the United States, and posted and filed as required by said acts, certain official tariffs known and designated as follows:

"1. Southwestern Tariff Committee's Tariff No. 7-M.

"2. Chicago, Rock Island and Pacific Railway Company's Tariff No. 18400.

"3. Chicago, Rock Island and Pacific Railway Company's Tariff No. 21500.'

'Which said tariffs were then and there in force and effect and were the only tariffs applicable to the shipment of sheep referred to in the complaint and under which the same could be lawfully moved, by this defendant or its connecting carriers; that in and by said tariff designated as 'Southwestern Tariff Committee's Tariff No. 7-M,' it was provided that the rate upon sheep from El Paso, Tex., to Chicago, Ill., shipped in double deck cars, with a minimum weight of 22,000 pounds, at shipper's risk, with the released valuation with right to feed in transit, was and should be 74 1/2 cents per hundred pounds, with an additional charge of $2 per car for delivery of such sheep to the Union Stockyards in Chicago, Ill.; that for a similar shipment without limitation upon the carrier's liability, a rate of 120 per cent. of said rate of 74 1/2 cents per hundred pounds should be charged; that in and by said tariff designated as 'Chicago, Rock Island & Pacific Railway Company's Tariff No. 18400,' it was provided as follows:

''Feeding in transit is only allowed on live stock at regular feeding stations, which are Eldon, Muscatine and Valley Jctn., Iowa, Silvis and Stockdale, Illinois, the above points having capacities for the following number of head and kinds of live stock:

-------------------------------------------------- Station. Pens. Capacity. -------------------------------------------------- Cattle Sheep Hogs Horses ------ ------ ---- ------ Eldon 58 1000 ...... .... 750 Muscatine 12 600 1000 840 250 Silvis 52 1560 3120 3120 1560 Stockdale .. .... 25000b .... .... Stockdale .. .... 10000c .... .... Valley Jctn. 14 .... ...... 840 .... Valley Jctn. 3 90 ...... .... 90 -------------------------------------------------- (b) In Bars. (c) In Pasture. --------------------------------------------------

"When shipments are tendered you with shipping directions to stop and feed at stations other than those mentioned above, or to fill up or partially unload commodities, you will call the attention of the shippers to our rules, and if they insist upon the shipping instructions, you will bill to the point at which they desire car to be stopped at full tariff rate (instead of to ultimate destination), noting on billing 'Car to be forwarded to . . . (ultimate destination), ' and advise the shipper that the charges will be at full local rates to and from stopping points.'

'That in and by said tariff designated as Chicago, Rock Island & Pacific Railway Company's Tariff No. 21500, that the defendant should charge for feed supplied to sheep in transit while at said Stockdale Yards, or other yards on the line of this defendant where feeding in transit is permitted by said tariff, as follows:

''When held for more than fifteen days: $16.00 per ton for prairie hay, $20.00 per ton for alfalfa hay, $24.00 per ton for corn, 75 cents per bushel for oats, $16.00 per ton for screenings and 75 cents per 100 lbs. for bedding.

"When held less than fifteen days: $20.00 per ton for prairie hay, $22.00 per ton for alfalfa hay, $30.00 per ton for corn, 75 cents per bushel for oats, $20.00 per ton for screenings and 75 cents per 100 lbs. for bedding.''

Plaintiffs in error filed a reply to the answer of the railway company,...