McCann v. Eddy

• Decision Date: 10 December 1895
• Citation: 33 S.W. 71,133 Mo. 59
• Parties: McCANN et al. v. EDDY et al.
• Court: Missouri Supreme Court

33 S.W. 71

133 Mo. 59

McCANN et al. v. EDDY et al.

Supreme Court of Missouri.

December 10, 1895.

CARRIER — LIABILITY FOR NEGLIGENCE OF CONNECTING CARRIER — REGULATION OF COMMERCE.

1. As Rev. St. 1889, § 944, provides that, whenever any property is received by a carrier for transportation from one place to another, such carrier shall be liable for the negligence of any other carrier to which such property may be delivered, a carrier contracting to transport cattle to a point beyond the terminus of its line cannot, by contract, exempt itself from liability for the negligence of the carrier completing the transportation.

2. The construction given to said statute does not make it repugnant to Const. U. S. art. 1, § 8, giving to congress alone the power to regulate commerce among the states.

Sherwood, J., dissenting.

In banc. Appeal from circuit court, Monroe county; Thomas H. Bacon, Judge.

Action by McCann & Smizer against George A. Eddy and another, receivers for the Missouri, Kansas & Texas Railway Company, for negligence in the transportation of stock. Plaintiffs had judgment, and defendants appeal. Affirmed.

For former report, see 27 S. W. 541.

Jackson & Montgomery, for appellants. J. H. Rodes and R. B. Bristow, for respondents.

MACFARLANE, J.

This action is to recover damages against defendants, as receivers of the Missouri, Kansas & Texas Railway Company, for negligence of duty in the transportation and delivery of 95 head of cattle from Stoutsville, in Monroe county, in this state, to Chicago, in the state of Illinois. Stoutsville is a station on the road operated by defendants. Hannibal is the eastern terminus of their road. From that point the Wabash Railway Company operates a road to Chicago. The cattle were delivered by defendants to the Wabash Company in a reasonable time and in good order, by which they were carried to Chicago. The negligence complained of was committed on the Wabash road, and by its employés.

So much of the contract under which the shipment was made as is necessary to an understanding of the questions involved is as follows:

"Rules and regulations: In case the owner or consignor agrees to hold these receivers free from liability from any and all causes enumerated in the following contract, also agrees to load, feed, water, and attend to the stock himself, etc., as specified therein, the rates agreed upon and specified in the contract will be given."

"Live-stock contract, executed at Stoutsville station, Mo., Nov. 12, 1890: This agreement, made between George A. Eddy and H. C. Cross, receivers of the Missouri, Kansas and Texas Railway, parties of the first part, and M. B. Smizer, party of the second part, witnesseth that: Whereas, the receivers of the Missouri, Kansas and Texas Railway transport the live stock as per above rules and regulations, and which are hereby made a part of this contract, by mutual agreement between the parties hereto: Now, therefore, for the consideration and mutual covenants and conditions herein contained, said party of the first part is to transport for the second party the live stock described below, and the parties in charge thereof as hereinafter provided, namely, six cars, said to contain 95 head of cattle m. or l. o. r., from Stoutsville station, Missouri, to Chicago, Illinois, station, consigned to Brown Bros. & Smith, care Union Stock Yards at Chicago, Illinois, at the through rate of 17½c. per hundred pounds, from Stoutsville, Missouri, to Chicago, Illinois, subject to minimum weights applying to cars of various lengths as per tariff rules in effect on the day of shipment, the same being a special rate, lower than the regular rates, or at a rate mutually agreed upon between the parties, for and in consideration of which said second party hereby covenants and agrees as follows: * * *."

The first and thirteenth of these covenants are as follows: "(1) That he hereby releases the party of the first part from the liability of common carrier in the transportation of said stock, and agrees that such liability shall be that of a mere forwarder or private carrier for hire. He also hereby agrees to waive, release, and hereby does release, said first party, from any and all liability for and on account of any delay in shipping said stock, after the delivery thereof to its agent, and from any delay in receiving same after being tendered to its agent." "(13) And it is further stipulated and agreed between the parties hereto that, in case the live stock mentioned herein is to be transported over the roads or road of any other railroad company, the said party of the first part shall be released from liability of every kind after said live stock shall have left its road, and the party of the second part hereby so expressly stipulates and agrees, the understanding of both parties hereto being that the party of the first part shall not be held liable for anything beyond the line of the Missouri, Kansas and Texas Railway, excepting to protect the through rate of freight named herein."

The contract was signed by both parties, and under it defendants claim exemption from liability.

Defendants asked but the court refused to give this instruction: "The court instructs the jury that under the contract read in evidence, under which plaintiff's cattle were shipped, the defendants are not liable for any damages sustained, by delays or otherwise, after said cattle were delivered by defendants to the next connecting carrier." The court, of its own motion, gave this instruction: "If, from the evidence, the jury find that beyond the limit of a reasonable time for the delivery of plaintiff's cattle at the Union Stock Yards at Chicago, Illinois, the Wabash Railway Company negligently delayed said delivery, and thereby directly caused pecuniary damage to plaintiffs in the disposition of said cattle, the jury will find for plaintiff, and, in default of such finding, the jury will find for defendant." The evidence tended to prove the negligence charged and the resulting damages. The judgment was for plaintiffs, and defendants appealed.

1. This appeal involves the interpretation of the contract under which the cattle were shipped, and a determination of the effect that should be given the clause exempting defendants from "all liability of every kind after the cattle left its road." As the contract must be construed so as to give proper effect to the statute, the interpretation of section 944 in its application to the contract is also necessary. That section is as follows: "Whenever any property is received by a common carrier to be transferred from one place...