Wabash R. Co. v. United States

• Decision Date: 09 April 1910
• Docket Number: 3,048.
• Parties: WABASH R. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F. 5

WABASH R. CO. v. UNITED STATES.

No. 3,048.

United States Court of Appeals, Eighth Circuit.

April 9, 1910

Syllabus by the Court.

The trial court rejected a written request on a railroad form partly in manuscript and partly in print, which was separate and apart from any bill of lading or other railroad form of similar character, for an extension of the time of confinement of a shipment of cattle from 28 to 36 hours under Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S. Comp St. Supp. 1907, p. 918, Supp. 1909, p. 1178), which provides that such an extension may be allowed 'upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any bill of lading or other railroad form. ' Held error.

(a) A legal request under this act may be made by the authorized agent of the owner, or by the person in custody of the particular shipment.

(b) Such a request may be printed, engraved, or stamped, or partly printed, engraved, or stamped and partly in handwriting.

(c) A legal request may be made on or in a railroad form separate and apart from a printed bill of lading or other railroad form than one which contains the request alone.

(d) Such a request may be made before the transportation of the shipment commences.

(e) Such a request may be made, although it is not induced by any unforeseen contingency that arises after the transportation commences.

There is a legal presumption that one to whom an owner of animals has intrusted their possession and control for delivery to a railroad company for shipment, and who actually delivers and ships them, is authorized by the owner to make the request specified in this law, and to do any other usual act relevant to such a transaction.

A railroad company is justified in relying upon this presumption, and cannot be held to have violated the law knowingly and willfully because it confines animals more than 28 and less than 36 hours in reliance upon this presumption without notice or knowledge of any defect in the authority of the agent.

When a legislative body has made a grant or given a permission with a specific exception or limitation, and has made no other exceptions or limitations, a conclusive presumption arises that it intended to make none, and it is not the province of the courts to do so.

It is the intention expressed in a statute, and that alone, to which courts may give effect. They may not assume or presume intentions and purposes of the lawmakers that the terms of the law do not indicate, and then enact or expunge provisions to accomplish such supposed intentions.

Ben J. Woodson (James L. Minnis and N. S. Brown, on the brief), for plaintiff in error.

Robert Dunlap (Gardiner Lathrop and James L. Coleman, on the brief), for the Atchison, T. & S.F. Ry. Co.

A. S. Van Valkenburgh (Leslie J. Lyons, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and AMIDON, AMIDON, District Judge.

SANBORN Circuit Judge.

A judgment for the penalty prescribed by the act of June 29, 1906, to prevent cruelty to animals while in transit (34 Stat. 607, c. 3594 (U.S. Comp. St. Supp. 1907, p. 918, Supp. 1909, p. 1178)), was rendered against the Wabash Railroad Company because it confined a shipment of cattle from Kansas City, Kan., to Elmo, Mo., more than 28 and less than 36 hours in the face of a written request, made at the time the cattle were delivered to the company for transportation, that the time of their confinement be extended to 36 hours.

The company complains because the court below, which tried the case without a jury, ruled this request out of the evidence, and disregarded it in entering the judgment. The request was on printed form No. 148 of the railroad company into blanks in which the description of the cars in which the cattle were shipped was inserted in handwriting. It was separate from any printed bill of lading or other railroad form, and it was signed, 'Byers Bros. & Co.' If the request was rightly rejected and disregarded for any valid reason, the judgment must be affirmed, and these grounds for the ruling below have been pressed upon our attention by counsel for the government in this case and in the cases of Atchison, Topeka & Santa Fe Ry. Co. v. United States (C.C.A.) 178 F. 12, and Missouri, Kansas & Texas Ry. Co. v. United States (C.C.A.) 178 F. 15, which were argued and submitted at this term: (1) Byers Bros. & Co. were not the owners nor the persons in the custody of the shipment when the request was made; (2) an agent of the owner may not lawfully make such a request; (3) this was not a written request, but it was partly in print and partly in manuscript; (4) it was on a railroad form; (5) it was made before the shipment started on its way; (6) it was not induced by any contingency which arose after the shipment started, and was unforeseen when the shipment was made.

The act of June 29, 1906, which conditions the decision of the questions thus presented, is a substitute for Act March 3, 1873, c. 252, 17 Stat. 585 (Rev. St. Secs. 4385, 4386, 4387, 4388; U.S. Comp. St. 1901, pp. 2994, 2995, 2996). In the following quotation may be found an excerpt of that portion of the act which is material to this case, with the additions made to this part of the original act printed in italics:

No railroad company carrying cattle from one state into another, etc., 'shall confine the same in cars, boats, or vessels of any description for a period longer than 28 consecutive hours without unloading the same in a humane manner into properly equipped pens for rest, water, and feeding, for a period of at least 5 consecutive hours, unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight; provided that upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lading or other railroad form, the time of confinement may be extended to 36 hours, * * * it being the intent of this act to prohibit their continuous confinement beyond the period of 28 hours, except upon the contingencies hereinbefore stated.'

It is a general rule of law that one may do by his agent whatever he may do himself. There are duties, services, and acts to the proper performance of which personal judgment and skill are indispensable that are excepted from this rule, but a request that the time of confinement of a shipment of cattle be extended for 8 hours is not of this character. The act of Congress does not modify the general law of agency, and an owner of animals may delegate to another the power to arrange and contract with a carrier for their shipment, to make the request for the extension of the time of confinement specified in the act of Congress under consideration, and to do any other act relating to the transportation which he could have done himself.

The authorized agent of the owner of a particular shipment of animals may lawfully make the request of the carrier, specified by the act of June 29, 1906, that their confinement be extended to 36 hours.

It is only when a railroad company knowingly and willfully violates this law that it becomes liable for the penalty it prescribes. There is a legal presumption that one to whom an owner intrusts the possession and control of his personal property, in order that he may deliver it to a carrier for transportation, has authority to stipulate with the carrier the terms of carriage, and that one to whom an owner of animals has intrusted them for delivery to and shipment by a railroad company, and who actually delivers and ships them, is authorized by the owner to make the written request specified in the law, and to do any other usual act relevant to such a transaction. Hutchinson on Carriers (2d Ed.) Secs. 84a, 265, 266; Id. (3d Ed.) Sec. 457; Nelson v. Hudson River R.R. Co., 48 N.Y. 498, 504; Squire et al. v. New York Central R.R. Co., 98 Mass. 239, 248, 93 Am.Dec. 162; Zimmer v. New York C. & H.R.R.R. Co., 137 N.Y. 460, 462, 463, 33 N.E. 642. A railroad company is justified in relying upon this presumption, and cannot be held to have violated this act knowingly and willfully because it confines animals more than 28 and less than 36 hours in reliance upon it, without any notice or knowledge that the authority is defective.

On the morning of September 21, 1907, the cattle were in the pens of the Kansas City Stockyards Company of Missouri subject to the order of Byers Bros. & Co., from whom one Bradley bought them with his promissory note and a mortgage on the cattle to Byers Bros. & Co. He requested the Railroad Company to furnish him cars and to haul these cattle to his farm at Elmo, made a contract with the company for their transportation, and directed Byers Bros. & Co. to ship them out. In the afternoon of this day Byers Bros. & Co. issued its order to the Stockyards Company to load the cattle for account of Bradley, signed the request in controversy delivered it to the Railroad Company, directed that company to ship the cattle from Byers Bros. & Co., consignors to Bradley, the consignee, and the company so wrote the bills of lading and waybills, obtained these bills of lading from the Railroad Company, and about 8 in the evening delivered them...