State v. Taylor
Decision Date | 02 April 1923 |
Docket Number | No. 23417.,23417. |
Court | Missouri Supreme Court |
Parties | STATE ex rel. and to Use of ST. LOUIS, B. & M. RY. CO. v. TAYLOR, Judge. |
Railway Company, against Wilson A. Taylor, judge of the Circuit Court of the City of St. Louis. Preliminary rule discharged.
J. F. Green, H. H. Larimore, and Thos. T. Railey, all of St. Louis, for relator.
Leahy, Saunders & Walther and J.L. London, all of St. Louis, for respondent.
This is an original proceeding in this court, whereby, upon petition of relator, we issued our preliminary rule fin prohibition against respondent as judge of division one of the circuit court of the city of St. Louis, commanding Yin to appear and show cause why he should not be prohibited from hearing or taking further cognizance of or action in a certain cause pending in division 1 of said circuit court, wherein American Fruit Growers, Inc. (hereinafter referred to as plaintiff) is plaintiff and relator in this case is defendant.
The return of respondent is in effect a demurrer to the petition, upon which our preliminary rule issued. It raises no issue of fact, but asks that the preliminary rule be discharged because the petition does not state facts sufficient to constitute a cause of action in prohibition. Relator filed its motion for judgment on the pleadings.
The contention of relator is that the plaintiff in the case pending in the said circuit court is seeking to hold relator liable in damages as the initial carrier in certain interstate shipments under the Carmack Amendment to the Interstate Commerce Act (U. S. Comp. St. §§ 8604a, 8604aa) for loss sustained by plaintiff on certain carload shipments made from points in the state of Texas to points outside said state over the lines of relator and connecting carriers. Relator has no line of railroad outside of Texas and has no office in Missouri and no agent in this state through whom personal service upon it can be obtained. Attachment was issued and the Illinois Central Railroad Company was summoned as garnishee.
Relator contends that the plaintiff under fits petition is seeking to hold it liable for damages caused by the negligence of its connecting carriers; that plaintiff's right to proceed for such negligence is a right conferred by the Carmack Amendment and is a federal right and can only be enforced by means of remedies granted by the federal law; that under the federal rule such suits can only be maintained in the district wherein personal service can be had upon relator, and that attachment cannot be maintained unless such personal service can also be obtained; that the same rule applies in the state courts in cases brought under the Carmack Amendment as obtains under the federal rule.
On the other hand, respondent contends that the petition states a cause of action for damages against relator only upon its common-law liability as a common carrier for its own negligence and does not predicate re" lator's liability upon its liability as the initial carrier under the Carmack Amendment; that even if said petition does seek so to hold relator, there is nothing in the amendment depriving state courts of the procedural right to attach the property of the carrier found within the jurisdiction of the state court, without regard to whether or not personal service can be had upon such carrier.
It therefore becomes necessary to examine the petition filed in the circuit court to determine the nature of the suit. Such petition is in three counts. The first count alleges that on April 30, 1920, a carload of bulk cabbage in good, sound, merchantable condition was consigned by one George A. Arts from La Feria, Tex., to Pittsburgh, Pa., over the railroad line of relator and was purchased by the plaintiff and it became consignee thereof, and that in violation of its common-law duty as a common carrier relator so negligently and carelessly transported said carload of cabbage that it was spoiled, deteriorated, and decayed so that it was useless and unmerchantable and a total loss upon its arrival " at destination. Judgment is prayed for the market value of such cabbage.
The second count alleges that on April 20, 1920, a carload of bulk cabbage in good, sound, merchantable condition was consigned by George A. Arts over relator's railroad line from Mercedes, Tex., to Cleveland, Ohio, and was sold to plaintiff, who became consignee thereof, and, in violation of its common-law duty as a common carrier and through relator's carelessness and negligence, said carload of cabbage arrived at destination in a yellow, deteriorated, and decayed condition, so that a large part thereof was useless and unmerchantable, causing loss to plaintiff, for which it prays judgment.
The third count alleges that on January 21, 1921, Hodge and Howell at Harlington, Tex., consigned over relator's railroad a carload shipment of vegetables, consisting of carrots, beets, cabbage, lettuce, and spinach in good, sound, merchantable condition to St. Louis, Mo., and that plaintiff purchased said carload of vegetables and became consignee thereof; that in violation of relator's common-law duty as a common carrier and throught its carelessness and negligence said carload of vegetables arrived at destination in a spoiled, deteriorated, and unmerchantable condition; and that plaintiff was forced to sell same at a loss, for which it prays judgment. The total damages sought to be recovered in the three counts is $1,962.88.
That portion of the amendment to the act to regulate commerce known as the Carmack Amendment, which is involved here, is found in chapter 3591 of the United States Statutes at Large, vol. 34, pt. 1, at page 595. It reads as follows:
It is obvious that the foregoing provisions did not change the liability of any carrier for its own negligence in handling shipments over its own lines (Cincinnati, N. 0. & Tex. Pac. R. Co. v. Rankin, 241 U. S. loc. cit. 326, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265), but required the receiving or initial carrier to issue a bill of lading to destination, whether such shipment was wholly over its own lines or over its own lines and those of connecting carriers and enabled the shipper or holder of such bill of lading to look to such receiving carrier for recovery for loss, damages, or injury to such shipment whether caused by such receiving carrier or any connecting carrier moving it en route to destination. It simply makes the connecting carriers agents of the receiving carrier and makes it answerable for their negligence or acts causing loss, damage, or injury, with the right in the receiving carrier to recover from the carrier at fault for any loss paid under such bill of lading. The evident purpose of such amendment was to do away with the necessity of the holder of a bill of lading making an investigation to determine which carrier was at fault, if other than the receiving carrier moved the shipment, and to leave the question of ultimate liability to be settled among themselves by the interested carriers.
I. Does the petition state a cause of action under the Carmack Amendment? We think it does. Relator has no railroad line outside the state of Texas, and since it accepted the shipments for destinations outside the state of Texas, part of the haul was over lines of connecting carriers, although such fact is not specifically alleged in plaintiff's petition. The three counts of the petition in the case pending before respondent are substantially alike in respect to the character of the shipments. They were consigned over the railroad of relator from different stations in Texas to destinations outside of Texas. Take the first count as characteristic of all. It does not allege that relator issued a receipt or bill of lading to destination, but does allege that the shipper placed the shipment in the possession of relator and the same was transported by it in a certain specified car with destination Pittsburgh, Pa. This is equivalent to an allegation that relator issued a through bill of lading to said destination. Relator received the shipment for transportation from a point within one state to a point within another state. In such case the carrier is required by the amendment to issue a through bill of lading, and the presumption will be indulged that relator did what the law required it to do. Relator could not have limited its liability to loss, damage, or injury occurring upon its own lines if it had attempted to contract to that effect when it undertook to transport the shipment over its own and connecting lines....
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