Kolkmeyer v. Chicago & A. R. Co.

• Decision Date: 02 November 1914
• Docket Number: No. 11296.,11296.
• Citation: 182 S.W. 794
• Court: Missouri Court of Appeals
• Parties: KOLKMEYER v. CHICAGO & A. R. CO.

182 S.W. 794

KOLKMEYER v. CHICAGO & A. R. CO.

No. 11296.

Kansas City Court of Appeals. Missouri.

November 2, 1914.

Rehearing Denied January 11, 1915.

Motion to Transfer to Supreme Court Denied January 7, 1916.

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

Action by Henry W. Kolkmeyer against the Chicago & Alton Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellant. Perry S. Rader, of Jefferson City, for respondent.

ELLISON, P. J.

Plaintiff was a general contractor in grading for railroads and also in revetment work for the federal government. In 1910 he was engaged, under a contract with the government, in the construction of a levee on the Missouri river at "Wilhite Bend," Howard county, Mo. He also had a contract with a railroad known as the Kansas City Southern, which was operated through the states of Missouri and Arkansas, to construct a part of its track in the latter state. When he completed his contract in Howard county he desired to take his employés and his work animals (horses and mules) to Horatio, Ark., and there carry out his contract with the Kansas City Southern.

Defendant's road runs through Glasgow, Howard county, to Kansas City, Mo., and plaintiff delivered his animals to defendant at Glasgow, to be carried by it to Kansas City at a rate of freight of 13½ cents per 100 pounds, and received defendant's written bill or agreement to carry to that place for that price, together with free passage for one attendant; plaintiff and his other men going by passenger train and paying fare. After loading the animals, defendant so negligently handled its train between Glasgow and Kansas City as to kill some of them and cripple others.

On arriving at Kansas City the animals not killed were placed in stockyards, and on the next day plaintiff shipped them to Horatio, Ark., over the Kansas City Southern. On account of plaintiff's intending to work for the latter road no charge for freight or passage was made by it. Defendant claimed there was a mistake in the freight rate stated in the written agreement for shipment from Glasgow, saying that it should have been 16 cents, instead of 13½ per hundred-weight. Plaintiff would not agree to this, and defendant turned over its claim to the Kansas City Southern for collection. Plaintiff was refused permission to unload at Horatio unless he paid the freight claimed by defendant of 16 cents per hundred. There was some question as to other charges which need not concern us now. Suffice it to say plaintiff finally paid a total bill of $50.70. He brought this action against defendant for damages suffered by him in consequence of defendant's negligence between Glasgow and Kansas City and recovered judgment in the trial court.

Plaintiff's petition bases his action on an intrastate shipment, under the state law, from Glasgow to Kansas City, both points in Missouri. Defendant insists that it was an interstate shipment, governed exclusively by the federal law as interpreted by the Supreme Court of the United States. Its basis for this contention is that the ultimate destination of the property was Horatio, Ark., and that the mere fact of a separate bill or shipping contract to Kansas City only would not prevent its being a through shipment. In the words of defendant's brief, its claim is that:

"The billing is immaterial, for the intention of the parties as to the actual destination must govern as to whether or not the shipment was an interstate shipment. If it was the intention of the shipper at the time he delivered the shipment to the defendant at Glasgow, Mo., to have it transported to Horatio, Ark., this would govern over any form of billing."

It is contended that this proposition is directly supported by the Supreme Court of the United States in Railroad Com. of La. v. Texas & Pac. Ry. Co., 229 U. S. 336, 33 Sup. Ct. 837, 57 L. Ed. 1215, and Railroad Com. of Ohio v. Worthington, 225 U. S. 101, 32 Sup. Ct. 653, 56 L. Ed. 1004.

In the first case proper tribunals of the state of Louisiana were seeking to recover penalties from the railroad for violation of the state law concerning the shipment of certain logs and staves. A proceeding was begun in the federal court to enjoin the action on the ground that the shipment was interstate, and the decision of the Supreme Court sustained that view. It appears that there was delivered to another railroad in Louisiana 18 carloads of logs and staves under a bill of lading naming New Orleans in the same state as the destination. That road hauled them to Alexandria in that state and delivered them to the Texas & Pacific Railroad Company; and the latter took them to New Orleans, where the consignees ordered them delivered to certain steamships plying between the latter city and European points, to which they were transported by the ships under bills of lading issued by the latter. There was another shipment which we need not notice. The ground of the decision in that case is that, notwithstanding local bills of lading only showing a shipment to New Orleans, it was manifest the intention was to make a foreign shipment. The court stated that the character and continuity of a shipment of foreign commerce did not terminate at the seaboard, nor was it terminated or affected by being transported on local bills of lading, and that the shipment "takes character as interstate or foreign commerce when it is actually started in the course of transportation to another state or to a foreign country."

Defendant insists that in view of this ruling plaintiff's local bill of lading from Glasgow to Kansas City, and a reshipment on another road from that point to Horatio, Ark., did not prevent the shipment being one of interstate commerce from the moment it was received at the starting point. But we think this case lacks the controlling fact of that case. Here there was no intention to ship to Horatio when the freight was delivered to defendant at Glasgow. The manifest intention was to ship only to Kansas City, at which point plaintiff was to have free transportation to Horatio. Rates of freight and rules of commerce did not concern plaintiff further than Kansas City. The object of his delivery of the stock to defendant at Glasgow was not for a through shipment to Horatio. The object was to get it to a point where commerce was at an end and plaintiff could have free transportation. The face of the case wholly negatives the idea that a through or continuous shipment was intended to start at Glasgow and end at Horatio. We fail to see any legal objection to one making a shipment locally from place to place, though he may intend ultimately to make a final stop at a point outside the state. Suppose this shipment had been a family carriage and team, or a motor car, and that the shipper, for pleasure, or business, had shipped it from place to place within the state, maybe in opposite directions, intending ultimately or finally (say in a week, a month, or a year) to make his last shipment to some place in another state; would each of these points in the itinerary be a part of an interstate shipment? Would the original shipment be considered the starting of an interstate shipment?

We think the case is within the decision of Gulf, Colo. & Santa Fé Ry. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540. There corn, originally brought from North Dakota to Kansas City, Mo., was taken on from the latter point to Texarkana, Tex., and there reshipped to Goldthwaite, Tex., the point intended from the start as the ultimate point of delivery. The shipper kept informed as to interstate freight rates and state rates, and he was thereby aware that he could get cheaper transportation by shipping first to Texarkana and then reshipping to Goldthwaite than by a direct shipment to the latter place. See divs. 11, 12, and 13 (204 U. S. 406, 27 Sup. Ct. 360, 51 L. Ed. 540) of statement of facts. The controversy was whether the shipment to Goldthwaite was a part of the shipment from North Dakota, and therefore interstate, or was it local and intrastate? The decision was that it was the latter. Judge Brewer, in delivering the opinion of the court, likened the shipment to a passenger. He said:

"In this respect there is no difference between an interstate passenger and an interstate transportation. If Hardin, for instance, had purchased at Hudson a ticket for interstate carriage to Texarkana, intending all the while after he reached Texarkana to go on to Goldthwaite, he would not be entitled on his arrival at Texarkana to a new ticket from Texarkana to Goldthwaite at the proportionate fraction of the rate prescribed by the Interstate Commerce Commission for carriage from Hudson to Goldthwaite. The one contract of the railroad companies having been finished, he must make a new contract for his carriage to Goldthwaite, and that would be subject to the law of the state within which that carriage was to be made."

The question is important and difficult, and if defendant is of the opinion that we have misconstrued the federal statute it will have the opportunity of taking the opinion of the Supreme Court of the United States.

The contract of shipment provided that plaintiff should give written notice of any claim for damages (not to any particular officer, but to the defendant) within five days after unloading. It is conceded by plaintiff that this was not done; but he insists that the notice was waived. Here again defendant takes the position that the shipment was interstate commerce, and governed by the federal law and the decision of the federal courts thereunder. We so decided in Hamilton v. Railway Co., 177 Mo. App. 145, 164 S. W. 248. If we are correct in the view that this was not an interstate shipment, then defendant's argument fails, and the question of notice and waiver must be determined by authoritative rulings of the state courts. Those rulings...