St. Louis & San Francisco Railroad Co. v. Heyser

Decision Date20 June 1910
CourtArkansas Supreme Court

Appeal from Benton Circuit Court; Joseph S. Maples, Judge; affirmed.

Judgment affirmed.

W. F Evans and B. R. Davidson, for appellant.

The State court had no jurisdiction of this cause of action. Hepburn Act, § 1. The shipper may select the connecting carrier, and compel the initial carrier to make the through shipment in this way. Hutchinson on Car., § 130; 9 Int Com. R. 182; 12 Id. 418; 50 Neb. 592; 97 S.W. 778. But this was not true at common law. 110 U.S. 667. In the absence of evidence to the contrary, the presumption is that the damage occurred on the line of the delivery carrier. 76 Ark. 589; 74 Ark. 597; 73 Ark. 114; 72 Ark. 502; 100 S.W 889. The amendment must be read into the original act as if the entire act had been re-enacted. 89 Ark. 598; 73 Ark. 600. The jurisdiction conferred on United States courts by the act is exclusive. 41 Neb. 375; 168 Mo. 652; 33 Cal. 212; 36 Cal. 281; 45 Cal. 90; 6 Blackf. 125; 13 L. R. A. (N. S.) 966; 6 Neb. 423; 65 Tex. 301; 68 Miss. 454. It requires a uniform system applicable to the whole country. 101 U.S. 691; 114 U.S. 196. The United States courts have exclusive jurisdiction under this act. 105 F. 785; 74 F. 981; 80 F. 78; 112 F. 826; 142 F. 187; 152 F. 293; 157 F. 857; 165 F. 1; 58 F. 858; 116 U.S. 104; 95 Ia. 113. The Hepburn Act is unconstitutional in that it deprives defendant of its property without due process of law. 4 Wheat. 235; Id. 519; 18 How. 276; 94 U.S. 113; 96 Id. 101; 106 Id. 196; 124 Id. 219; 169 Id. 366; 166 Id. 226; 17 Wall. 438; 92 U.S. 481; Id. 543; 95 Id. 294; 103 Id. 182; 154 Id. 46; 163 Id. 85; 148 Id. 312; 85 Ark. 422; 174 U.S. 580; 20 Wall. 266; 2 Pet. 657; 159 F. 500; 8 Wall. 623; 111 U.S. 746; 90 N.W. 1099; 155 Ill. 98; 98 N.Y. 107; 99 N.Y. 377; 109 N.Y. 389; 46 A. 234; 45 S.E. 331; 66 N.E. 1005; 196 U.S. 447; 207 U.S. 463; 10 S.E. 285; 59 P. 341; 125 U.S. 188; 127 Id. 205; 15 S.W. 87; 44 Conn. 291; 47 N.E. 302.

Rice & Dickson, for appellant.

Causes of action in tort and contract may be joined. 85 Ark. 129. The State court may hear the common law cause of action. 83 S.W. 362; 80 Ark. 542. A claim for damage to goods accrues upon the delivery of the goods in a damaged condition. 88 Ark. 594. Appellant is liable for the damages. 83 Ark. 92; 81 Ark. 469. The contract was to deliver at the destination. 74 Ark. 10. A contract limiting liability is void if prohibited by statute. 169 U.S. 133; 24 Ia. 412; 28 L. R. A. 718; 58 Am. St. R. 430; 95 Ia. 260; 63 N.W. 692; 45 Ia. 470. The State court has jurisdiction. 90 Ark. 308; 89 Ark. 404.

FRAUENTHAL J. BATTLE, J., not participating.



This was an action instituted by William Heyser, the plaintiff below, against the St. Louis & San Francisco Railroad Company to recover the damages which resulted during transportation to a shipment of peaches. It was alleged in the complaint that on August 8, 1907, the plaintiff delivered to the defendant at Rogers in the State of Arkansas two cars of peaches for carriage to Baltimore in the State of Maryland, and that the defendant accepted the property for transportation, and by its written contract agreed to carry same to said latter point and there deliver same to plaintiff. It was alleged that by reason of the negligence in failing to carry the peaches with reasonable dispatch and in failing to properly ice and keep properly iced the refrigerator cars in which they were carried the peaches rotted and decayed; and the plaintiff sought to recover the damages which he thereby sustained.

To this complaint the defendant interposed a demurrer; and thereafter in its answer also set up the grounds of the demurrer as a defense to a recovery. In its answer it pleaded that from the complaint it did not appear that any negligence occurred upon the defendant's line of railroad, and that the plaintiff sought to recover damages to the peaches which resulted by reason of negligence which occurred upon the line of railroad of another and connecting carrier by virtue of the provisions of the act of Congress commonly known as the "Hepburn Act," which was approved June 29, 1906, and which is amendatory of the Interstate Commerce Act approved February 4, 1887; that said act, in so far as it attempts to make the initial carrier liable for the negligence of a connecting carrier, is unconstitutional and invalid; and, if valid, that the State courts have no jurisdiction to enforce the rights thereby created. The defendant also denied the allegations of negligence. It also pleaded that according to the written contract of shipment it was provided that as a condition to a recovery notice of the loss or damage must be given within thirty hours after the arrival of the property at its destination and delivery, and it alleged that such notice was not given.

It appears from the testimony that the defendant owned a line of railroad running through the States of Arkansas and Missouri, and that it was engaged as a common carrier in interstate commerce. On August 8, 1907, there were delivered to the defendant at Rogers, Arkansas, two cars of peaches to be transported from that point to Baltimore, Maryland. The defendant executed its written receipt or bill of lading for the peaches by which it contracted to transport the property, and therein named the plaintiff as the consignee and the place of destination to be Baltimore, Maryland. In said written receipt or bill of lading it was provided: "No carrier shall be responsible for loss or damage of any freight unless it is proved to have occurred during the time of its transit over the particular carrier's line, and of this notice must be given within thirty hours after the arrival of the same at destination. No carrier shall be responsible for loss or damage to property unless notice of such loss or damage is given to the delivering carrier within thirty hours after delivery. * * * It is further agreed that for all loss or damage occurring in the transit of freight the legal remedy shall be against only the particular carrier in whose custody the said freight may actually be at the time of the happening thereof."

The evidence tended to prove that when the peaches were loaded in the cars and delivered to defendant at Rogers they were perfectly fresh and sound, and that when they arrived at Baltimore they were injured by dry rot and decay, and were damaged thereby to an amount equal to if not in excess of the sum herein recovered. If the cars had been properly iced and kept properly iced, and the peaches properly transported without unreasonable delay, the testimony tended to prove that they would have reached the plaintiff at Baltimore in a perfectly sound condition.

Immediately upon the arrival of the peaches at Baltimore the plaintiff examined same, and, finding that they were greatly damaged, he at once, and within thirty hours after the arrival, gave notice of his claim of damages to the depot manager or assistant foreman of the delivering carrier, whose duty it was to notify the consignee of the arrival of goods and note any complaints for damage thereto.

Upon the trial of the case a verdict was returned in favor of the plaintiff, and the defendant has appealed from the judgment entered thereon.

By section 20 of the act of Congress approved February 4, 1887, commonly known as the Interstate Commerce Act (U.S. Comp. St. 1901, p. 3169), as amended by the act of Congress approved June 29, 1906, and commonly known as the "Hepburn Act" (U.S. Comp. St. Supp. 1907, p. 909), it is, among other things, provided:

"That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed. Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws."

"That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay to the owners of such property as may be evidenced by any receipt, judgment or transcript thereof."

It is urged that the rights thus created spring from an act of Congress relating to an interstate shipment, and not from any law of this State, and on that account such rights can not be recognized or enforced in the courts of this State. It is true that the State can not legislate relative to matters that are the subject of interstate commerce, but this does not prevent the courts of the State from taking cognizance of cases that arise out of such commerce. The citizen of the State is also a citizen of the United States, and is entitled to the rights and the protection which are given him by the Constitution and laws of the United States; and the courts of the State have the power to enforce those rights and grant that protection. In the case of Robb v. Connolly, 111 U.S. 624, 28 L.Ed. 542, 4 S.Ct. 544, Mr. Justice Harlan said:

"Upon the State courts, equally with the courts of the Union, rests the...

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