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

• Decision Date: 26 April 1909
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. KELLER
• Court: Arkansas Supreme Court

119 S.W. 254

90 Ark. 308

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. KELLER

Supreme Court of Arkansas

April 26, 1909

Appeal from Crawford Circuit Court; Jeptha H. Evans, Judge reversed.

Judgment reversed and cause dismissed.

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

1. The State court had no jurisdiction. The interstate commerce law as amended by the Hepburn act, takes absolute control of all interstate transportation. See Hepburn act, §§ 1, 2, 3, 5, 6, 7, 8, 9, 10, 13, 14-16, 20. Where a new right has been created, and the remedy is prescribed in a particular court, that court has exclusive jurisdiction. 168 Mo. 652-6; 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; 65 Miss. 454; 105 F. 785; 74 Id. 981; 81 Id. 78; 112 Id. 826; 142 Id. 187; 152 F. 293; 157 F. 847; 165 Id. 1; 95 Iowa 113; 41 Neb. 375.

2. The Hepburn act is unconstitutional in that it deprives defendant of its property without due process of law. Due process of law under the 5th Amendment applies to the National Government; protects property from the arbitrary exercise of the powers of government unrestrained by established principles of private right. 106 U.S. 196; 4 Wheat. 235; Id. 519; 18 How. 276; 94 U.S. 113; 96 Id. 101; 124 Id. 219; 164 Id. 403; 169 Id. 266; 166 Id. 226 et seq. It means a trial by a court governed by rules previously established. 17 Wall. 438; 92 U.S. 481; Id. 543; 95 U.S. 294; 103 Id. 182; 154 Id. 46; 163 Id. 85; 134 Id. 418. The party must not only be brought into court, but he must be allowed to set up any good defense according to the usage of the common law. Cooley, Const. Lim., 7th Ed. 527, and note 1; 18 How. 253; 110 U.S. 535; 111 Id. 708; 166 U.S. 235. Taking away a valid defense is confiscation. 62 N.E. 488. See also 164 U.S. 578; 208 U.S. 161; 74 F. 803. Congress can no more take property without due process than a State. 18 Gratt. 100; 164 F. 215.

It deprives both the shipper and the carrier of the right to make a reasonable and lawful contract. 198 U.S. 45. A bill of lading is a contract to carry to destination. 174 U.S. 580. The right to make a reasonable and lawful contract is inalienable and cannot be destroyed by legislation. 20 Wall. 666; 2 Peters 657; 8 Wall. 623; 111 U.S. 746; 90 N.W. 1099; 155 Ill. 98; 98 N.Y. 107; 99 N.Y. 377; 109 Id. 389; 46 A. 234; 45 S.E. 331; 175 U.S. 211; 165 Id. 578; 196 Id. 447; 207 Id. 463; 10 S.E. 285; Id. 288; 59 P. 341; 198 U.S. 45; 193 U.S. 340 et seq. it compels the carrier to contract for services beyond its line. 200 U.S. 536; 110 U.S. 668; 61 S.W. 1096; 160 Mass. 62; 142 F. 844; 63 Ark. 326; 35 Ark. 402.

In making the initial carrier liable to the holder of the bill of lading for any damage or injury to the property occurring on the line of any other carrier to which the property may be delivered, or over which it may pass, the act arbitrarily deprives one person of property and confers it upon another. Neither Congress nor the Legislature of a State has the power to make one person the debtor of another over whom he has no control, nor liable for his obligations. 15 S.W. 87; 44 Conn. 291; 47 N.E. 302; 18 N.E. 692; 53 Ia. 42; 78 Ill. 55; 165 U.S. 150; 49 Ark. 492; 72 Ark. 357; 103 Mass. 120; 33 Ark. 816; 68 Ark. 471; 127 Mass. 50; 71 F. 610; 164 U.S. 403; Id. 578.

The remedy afforded by the act is inadequate and unlawful. The party ultimately liable cannot ordinarily be made a party to the record in the suit, and an attempt to make a receipt or judgment a claim against the party who is not a party to the record is contrary to natural right, and to the 5th Amendment. 94 Am. St. Rep. 722; 118 F. 180; 67 S.W. 856. A connecting carrier must be made a party to the record before its interests can be affected. 68 Ark. 171; 152 F. 290; 118 F. 180; 173 U.S. 684 et seq.; 198 U.S. 45. Personal rights and private property cannot arbitrarily be taken away under the guise of police regulation. 92 U.S. 259; 134 U.S. 418; 142 U.S. 552; 143 U.S. 344; 103 F. 620.

3. The notice required by the contract of any loss or damage to be given within 30 hours after delivery was a condition precedent to the right to sue. None was given. 67 Ark. 407; 16 U. C. P. 76; 76 Mo. 514; 20 Mo.App. 445; 18 Id. 577; 23 Am. & Eng. R. Cas. 684; 16 Id. 259, and cases cited; 4 Elliott on Railroads, 2340, § 1412. If this is a shipment under the Hepburn act, the notice is required, and the offer of two rates to the shipper was not necessary. 194 U.S. 427; 204 U.S. 505.

Sam R. Chew, for appellee.

OPINION

FRAUENTHAL, J.

This is a suit instituted by the plaintiff, W. F. Keller, against the defendant, St. Louis & San Francisco Railroad Company, for a recovery of damages to a shipment of peaches. It is alleged in the complaint that on July 20, 1907, the plaintiff delivered to the defendant at Van Buren, in the State of Arkansas, 515 crates of peaches, and that the defendant by its written contract of shipment agreed to carry same to New York in the State of New York and there deliver same to D. T. Goldsmith. It is alleged that the peaches were greatly damaged on account of the unnecessary and unreasonable delay in their transportation, and by the neglect and failure to properly and sufficiently ice and keep iced the refrigerator car in which the peaches were carried, so as to preserve and keep them sound and firm.

In its answer the defendant interposed a number of defenses to a recovery in this case. It pleaded that from the complaint it does not appear that any damage was done to the shipment on defendant's line of railroad, and that the plaintiff seeks to recover from defendant damages to the peaches which occurred on the line of railroad of another and connecting carrier, under the provisions of the act of Congress commonly known as the "Hepburn Act," and which was approved June 29, 1906, and which is amendatory of the Interstate Commerce Act approved February 4, 1887; that that act, in so far as it attempts to hold liable the initial carrier 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 further denied every allegation of negligence and damage, and specifically pleaded that, according to the written contract of shipment, it was provided that a notice in writing of the claim for loss or damage must be given within thirty hours after the arrival of the property at destination and delivery, and that if such notice was not given a recovery could not be had; and it alleged that such notice was not given.

By the contract under which these peaches were shipped it was provided: "No carrier shall be responsible for loss or damage of any of the freight shipped 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 30 hours after delivery."

Relying upon the validity of the above stipulations, the defendant asked the giving of the following instructions:

"7. I charge you that by the terms of the contract if the shipper claimed that there was damage or loss sustained it was his duty to give notice of the same within thirty hours after the arrival of the same at destination. If he failed to do so, then he could not recover in this action.

"8. I charge you that no recovery could be had in this case unless notice of said loss or damage was given to the delivering carrier within thirty hours after delivery."

The court refused to give these instructions.

The evidence tended to prove that the peaches were delivered to the defendant for transportation on July 20, 1907, consigned to "D. T. Goldsmith, Pier 29, New York, care of Vandalia," and that they arrived on the docks in New York, Pier 29, at 12 o'clock on July 28, 1907, and on the same day were delivered to D. T. Goldsmith, who began an examination of the same on the night of that day by opening the crates and baskets and inspecting the peaches; and he testified that he then found them in a very unsound and decayed condition. On the morning of July 29, 1907, D. T. Goldsmith, the party named as consignee in the bill of lading, executed a written receipt for the peaches in which he stated: "Received in good condition the following described packages;" and then follows a description of this shipment of peaches.

Thereafter, and on the 29th day of July, 1907, the peaches were sold by plaintiff's agent at a very greatly reduced price on account, as it is claimed, of their damaged condition. It does not appear that any notice of any kind was given at any time of the intention to claim damages or of any claim of damages.

Inasmuch as the right of plaintiff to recover herein is determined by the fact as to whether or not there was given notice of the claim of damages as required by the stipulations of the contract of shipment, we do not think it necessary to enter into a discussion and determination of the other defenses interposed by defendant.

The contract of shipment in this case specifically provided that, before a recovery could be had, a notice in writing must be given of loss or damage within thirty hours after the arrival of the peaches at destination and their delivery; that is to say, a notice of the intention to claim damages must be so given. And in this case such notice was not given.

This provision of the contract does not affect the liability itself, of the common carrier created or caused by the act itself of injury or of negligence. It is not a limitation of or an...