McArthur v. Payne

• Decision Date: 05 February 1924
• Citation: 258 S.W. 684,201 Ky. 793
• Parties: MCARTHUR v. PAYNE, DIRECTOR GENERAL OF RAILROADS.
• Court: Kentucky Court of Appeals

258 S.W. 684

201 Ky. 793

MCARTHUR v. PAYNE, DIRECTOR GENERAL OF RAILROADS.

Court of Appeals of Kentucky.

February 5, 1924

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by C. C. McArthur, doing business as C. C. McArthur & Co. against John Barton Payne, Director General of Railroads. Judgment for defendant, and the plaintiff appeals. Reversed and remanded.

Thos C. Mapother, of Louisville, for appellant.

Trabue Doolan, Helm & Helm, B. D. Warfield and J. J. Donohue, all of Louisville, for appellee.

McCANDLESS J.

This suit was brought to recover damages sustained in transit on three different shipments of cattle between Ashford, Ala., and Louisville, Ky. In separate paragraphs it was alleged that the cattle were delivered to the initial carrier, the Atlantic Coast Line Railway Company in good condition and that when received by the consignee from the delivering carrier the Louisville & Nashville Railroad Company, at Louisville, Ky. they were in bad condition; it being further alleged that there was an unreasonable and negligent delay in transit and that this caused the injury complained of. As to the third shipment it was also alleged that the cattle were delivered to the consignee at Louisville as "Southern" or "quarantine" cattle; that by reason of this they were placed in a separate classification at the stockyards and could only be sold to a certain class of trade, and thereby the price realized for them was much less than for cattle not so restricted; that the cattle were not of the class described and were entitled to be placed on the market without any restrictions and that such restrictions and limitations were occasioned by the negligence of the defendant, the Louisville & Nashville Railroad Company.

The two companies were joined as defendants, but service was had only on the agent representing appellee in the operation of the Louisville & Nashville Railroad, and recovery is only sought against appellee as its agent.

The learned trial judge was of the opinion that in order to recover against a connecting carrier, other than the initial carrier, in an interstate shipment, the burden is upon the plaintiff to plead and prove that the alleged injury occurred on the lines of that carrier, and on this theory sustained the demurrer to the first two paragraphs of the petition, which pleading was then amended to conform to that theory.

Plaintiff's evidence was to the effect that the stock was delivered at Ashford, Ala., to the initial carrier in good condition; that it was received in Louisville in bad condition and that the length of time the stock were in transit was unusual and unreasonable, and by reason of its length the cattle suffered in weight and condition, and one of them was missing. But no evidence was introduced as to their condition when received by defendant, Lousville & Nashville Railroad Company, or as to the length of time they were under its control, or the exact time they were received by it, and on this account exceptions were sustained thereto.

As to the third paragraph, the plaintiff's evidence showed that the waybill covering the shipment in question, and upon which they were delivered to the consignee in Louisville, contained pencil notations, "Southern cattle" "quarantine" "for immediate slaughter," and that such cattle, while not necessarily unhealthy, are presumed to have had an opportunity for infection; that this might later develop and that such stock must be treated before being placed upon the open market, or otherwise sold for immediate slaughter, and that this materially diminishes the sale price below that of free cattle. It is not shown where or by whom these notations were made. Ashford and Louisville are both in free territory, and the cattle were not subject to the limitations mentioned, and none were placed in the original bill of lading, the notations on the waybill being a blunder upon the part of the carrier.

At the completion of plaintiff's evidence the court gave a peremptory instruction to the jury to find a verdict for defendant, which was done, and the plaintiff has appealed.

This being an interstate shipment it falls within the provisions of the Carmack Amendment to the Hepburn Act (U. S. Comp. St. §§ 8604a, 8604aa). It is settled that a connecting carrier other than the initial carrier is liable only for injuries occasioned by negligence occurring on its own line, but the decisions are not in harmony among the different courts as to whether that amendment was cumulative or exclusive of the common-law rules of presumption as between such carriers. It has been held that, as the amendment gives a right of action to the shipper as against the initial carrier for all damages for negligence arising throughout the shipment, it was intended to afford a general remedy to the exclusion of all others except to the extent that the carrier upon whose lines the damage actually occurred was liable in a separate suit, that the burden in such cases is upon the shipper to allege and prove that the damage occurred on its lines. Johnson-Brown Co. v. Delaware, L. & W. Ry. Co. (D. C.) 239 F. 590; Pennington v. Grand Trunk Ry. Co., 277 Ill. 39, 115 N.E. 170; Hudson v. C., St. Paul, M. & O. Ry. Co. (D. C.) 226 F. 38.

And the same construction is intimated in Sou. Ry. Co. v Avey, 173 Ky. 598, 191 S.W. 460, this in an effort to accord with the federal courts on this question, though...