Waters v. Mobile & Ohio Railroad Co

• Decision Date: 08 February 1897
• Citation: 21 So. 240,74 Miss. 534
• Parties: WILLIAM WATERS v. MOBILE & OHIO RAILROAD CO
• Court: Mississippi Supreme Court

21 So. 240

74 Miss. 534

WILLIAM WATERS v. MOBILE & OHIO RAILROAD CO

Supreme Court of Mississippi

February 8, 1897

October 1896

FROM the circuit court of Monroe county HON. NEWNAN CAYCE, Judge.

The facts are stated in the opinion.

Judgment reversed and cause remanded.

Gilleylen & Leftwich, for appellant.

The action at bar, as well as those brought by Kahl and Smithpot were intended as actions of tort, and not of contract. Appellant and the other owners of the stock on appellee's car had the right to sue appellee in tort as a common carrier. The fact that a contract existed whereby appellee attempted to limit its liabilities and which could be introduced by appellee as defensive evidence, as it did introduce it, did not hinder appellant from suing originally in tort. Appellant could have waived the tort and sued on the contract, but he did not care to do so, nor did the other owners of stock on the car. The existence of the contract in the record does not hinder appellant from suing in tort if he chooses. Clark v. St. L., K. C. & N. R. R. Co., 64 Mo. 440 (17 Am. Ry. Rep., 284); Heil v. St. L., I. M. &amp S. R. R. Co., 16 Mo. 363; Boos v. Central Railroad Co., 87 Ga., 463 (13 S.E. 711); Nicoll v. E. T., V. & G. R. R. Co., 89 Ga., 260; 1 Rap. & Mack's Dig. of R. Law, sec. 135, p. 802.

The ruling of the lower court is tantamount to saying that appellant should not sue at all for injury to his stock unless he sues on the contract in evidence, which, in so far as appellee attempts to relieve itself from its own negligence, is not binding on appellant. Express Co. v. Seide, 67 Miss. 609; Railroad Co. v. Abels, 60 Miss. 1017; Express Co. v. Moon, 39 Miss. 822; 19 Cent. L. J., 163.

Appellant could not have brought a single action in this case if he had wished, because he could not have said in his declaration that he was owner of all the stock and goods, as he must have done. He could not have said that he was bailee and shipper of all the stock and goods, as he might have done had they all belonged to some one else. He could not have made two inconsistent counts in his declaration--one for the stock he owned, and another for the stock and goods he was bailee for. 1 Eric. Pl. & Pr., 190, 166, 159. The plaintiff must sue in the same right when separate causes of action arise out of the same tortious act. 1 Chitty on Pl., 199, 203.

When stock belonging to different persons is shipped under one contract and each individual brings a separate action, they cannot be afterwards consolidated. Boughman v. Railroad (Ky.), 21 S.W. 757; Railroad v. Hall, 2 Ill. App. , 618; Railroad v. Case, 42 Am. & Eng. R. R. Cas., 537; 122 Ind., 310; 32 N.E. 797; 1 Rap. & Mack's Ry. Dig., 802, 803, 136, 137.

This court has decided that, in actions of this kind, the owner is the proper person to sue, and the owner alone. Railroad v. Cantrell, 70 Miss. 329. The contract or bill of lading is properly a receipt, and can be varied, explained and contradicted by parol proof. 2 Am. & Eng. Enc. L., 224. Such portions of these papers that have the elements of a contract, if there be any such, constitute an attempt to contract against negligence, and are void as being against public policy. Railroad v. Abels, 60 Miss. 101.

Sykes & Bristow, for appellee.

The court will perceive from the bill of lading in the record, that the plaintiff, Waters, entered into a regular "live stock contract" with the defendant railroad company, to which contract the plaintiff signs himself "owner and shipper" of the contents of the car, the "emigrant car" chartered by him, and had the car and its contents consigned to him at Aberdeen. In short, Waters was, with reference to this contract and this defendant, owner, shipper and consignee; he was the only person to whom, under this contract, the railroad company owed any kind of duty or diligence; the company was bound to transport and deliver the car and its contents to Waters, and no one else. Will the court, under this contract, permit several parties, with whom the defendant did not contract, and to whom it owed no duty or diligence, and to whom it was not bound to deliver the car and its contents at all, to come in and split up the contract, and bring several suits in the justice's court for damages growing out of the contract, amounting to more than two hundred dollars?

It is not contended that there has been any transfer or assignment, since the occurrence, of any right of action by Waters to Smithpot or Kahl, or by them to Waters. The contract, with all legal rights thereunder, remains just as it was when it was made. It will not avail plaintiff to claim that his suit is in tort and not on the contract. The whole suit shows the contrary. There is no hint at any wanton or wilful wrong, and, under the contract in this case, the duty of appellee was narrowed. The statutes of this state, as often decided by this court, hold that it is not lawful to split up one single contract into several suits, where the adjudication requires an investigation of the same state of facts in every suit, and that such a separation of the cause of action in several suits by the act of the plaintiff will not be tolerated. Pittman v. Chrisman, 59 Miss. 124.

OPINION

STOCKDALE, J.

On February 11, 1896, William Waters chartered an emigrant car at Shipman, Ill. to be run by the Chicago & Alton Railroad to East St. Louis, and from there to Aberdeen, Miss. over the Mobile & Ohio Railroad, paying for the through trip in advance. The car was loaded with two horses and one colt belonging to Wm. Waters, and two mules belonging to F. R. Kahl, and three horses belonging to Gus Smithpot, and household and kitchen furniture belonging to all of them. William Waters signed a regular live stock shipping contract with the Chicago & Alton Railroad at Shipman, Ill. and at East St. Louis he signed another such contract with the Mobile & Ohio Railroad, covering the trip of said car from East St. Louis to Aberdeen, Miss. in which contract he appears as shipper, owner and consignee, which he swears he did not know he would be required to sign until he was ready to start, but had to sign or not go. On the car with the stock and goods came the owners. On their arrival at Aberdeen, a day late, the car was side-tracked, and Waters and the other owners took their stock and goods out in, as they claimed, a damaged condition, and so informed the railroad agent at Aberdeen at the time. Failing to effect an amicable settlement, suits were brought before a justice of the peace, in Aberdeen, against the Mobile & Ohio Railroad Company, as follows:

William Waters sued for damage to his two horses and one colt, demanding damages to the amount of $ 130.

William Waters, agent for Gus Smithpot, sued for damage to Smithpot's three horses and a stove, demanding $ 50.

William Waters, agent for F. R. Kahl, sued for damage to the two mules of Kahl, demanding $ 90.

Judgment was rendered in each case for the amount of the demand, and the defendant, Mobile & Ohio Railroad Company, took an appeal in each case to the circuit court of Monroe County.

At the September term, 1896, of said court, the case of William Waters v. Mobile & Ohio Railroad Company was called for trial and the parties proceeded with the trial and introduced a large volume of testimony before the jury, including the appeal papers in the other two cases. And then, after the testimony was all in, defendant moved the court to dismiss the cause "for want of jurisdiction in the justice of the peace court, because plaintiff had split up his cause of action" into three suits. The court sustained the motion, dismissed the cause and taxed plaintiff with all the costs, and plaintiff appealed. The contention of appellee is, that each of the three suits being predicated on the alleged negligence of the railroad company, in handling the same car of stock and furniture while in transit from East St. Louis to...