Uber v. Chi., M. & St. P. Ry. Co.

• Citation: 151 Wis. 431,138 N.W. 57
• Court: Wisconsin Supreme Court
• Decision Date: 08 October 1912
• Parties: UBER ET AL. v. CHICAGO, M. & ST. P. RY. CO.

151 Wis. 431

138 N.W. 57

UBER ET AL.

v.CHICAGO, M. & ST. P. RY. CO.^d1

Supreme Court of Wisconsin.

Oct. 8, 1912.

Appeal from Circuit Court, Washington County; Martin L. Lueck, Judge.

Action by Charles G. Uber and others against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Timlin, J., dissenting.

This action was brought to recover damages occasioned by the loss of a car load of sheep pelts shipped from Monroe, Mich., consigned to the “order of Mainzinger Bros., Milwaukee, Wisconsin, notify Uber Bros., at Hartford, Wisconsin.” The pelts were shipped September 10 or 11, 1909, over the Lake Shore & Michigan Southern Railway, and received by defendant as connecting carrier at Franklin Park Junction, Ill., on the 14th day of September, 1909, at 2:35 p. m. The car went forward from Franklin Park Junction September 14, 1909, at 6:10 p. m. From Franklin Park Junction to Milwaukee is less than a 10-hour run. The evidence tends to show that the car arrived in Milwaukee early on the morning of September 15th, and Uber Bros. were not notified until the morning of September 20th. The notification was by mailgram which is a message sent by train. It was admitted upon the trial by counsel for defendant that, upon the arrival of the car at Milwaukee, it was the duty of the agent to notify Uber Bros. of the arrival of the goods. The agent of defendant at Milwaukee knew who the car was for, and that it contained perishable property. To insure prompt delivery of the car a tracer was ordered put to the car. The pelts were in good condition when loaded, and would remain so for 8 or 10 days in warm weather.

At the close of the evidence a motion was made by defendant for directed verdict, which was denied, and the jury returned the following verdict:

“Were the pelts in question spoiled while in transit from Monroe, Mich., to Hartford, Wis.? Answer: Yes. (By the Court.)

Did the defendant exercise reasonable care and diligence in notifying plaintiffs of the arrival of said shipment of pelts in Milwaukee? Answer: No.

If you answer the second question ‘No,’ then answer this question: Was such failure to exercise reasonable care and diligence in giving notice the proximate cause of the spoiling of said pelts? Answer: Yes.

Did the act of the shippers in routing the shipment to Milwaukee, instead of Hartford, contribute proximately to the spoiling of the pelts? Answer: Yes.

Were the shippers guilty of any negligence on their part in loading the pelts which contributed proximately to the spoiling thereof? Answer: No.

What sum of money will compensate plaintiffs for the damages suffered in consequence of the spoiling of said pelts? Answer: Twelve hundred fifty-one and 35/100 dollars. (By the Court.)”

Motions of defendant to change the answer of the second question from “No” to “Yes,” and for judgment upon the verdict as corrected, also for judgment based upon the verdict and the minutes of the court, were denied and due exception taken. Judgment was entered in favor of the plaintiffs, from which this appeal was taken.

C. H. Van Alstine, H. J. Killilea, and Rodger M. Trump, all of Milwaukee, for appellant.

John C. Russell, of Hartford, for respondents.

KERWIN, J. (after stating the facts as above).

[1] It is first insisted by counsel for appellant that this action cannot be maintained because of the Carmack amendment to the Hepburn Act (34 U. S. Stats. at Large, 595), which makes the initial carrier liable; hence the action in this case should have been commenced against the initial carrier, the Lake Shore & Michigan Southern Railway Company. This question was considered in Tradewell v. Chicago & N. W. Ry. Co., 136 N. W. 794, and this court said: “We think the rule established by this court that action may be maintained against the last carrier is still in force, and not abrogated by the Carmack amendment.” We are asked by counsel for appellant to reconsider this statement, and it is urged that it is not the law, but, on the contrary, it is insisted that the action cannot be maintained against the last carrier since the passage of the Carmack amendment. The contention of counsel upon this point is, in substance, that the contract of shipment from Monroe, Mich., to Milwaukee, Wis., was an interstate commerce contract under which the initial carrier was made liable under the Carmack amendment; the connecting carrier, the defendant here, being merely the agent of the initial carrier, therefore not liable to the plaintiffs. That Congress having legislated respecting the matter, such act superseded all state laws, statutory and common, covering the same field. Whether this contention would be sound in the absence of the proviso in the Carmack act, namely, “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 law,” we need not consider. We think it clear from the whole act that the purpose of Congress was to give a remedy absolutely in all cases against the initial carrier, but at the same time preserve all remedies existing before the passage of such act. Now, before the passage of the Carmack act, the plaintiffs in this state clearly would have a remedy against the last carrier, and, as we held in the Tradewell Case, we do not think that remedy was abrogated. We have carefully considered the argument of counsel and the authorities cited upon this proposition, and are still of the opinion that the action in this case was properly brought...