137 Mo. App. 479 | Mo. Ct. App. | 1909
(after stating the facts). — 1. (a) Several grounds of liability are indicated in the petition and in the instructions requested by plaintiff. One is a joint contractual liability of the four railway companies. These companies are stated to have owned connecting lines of railway which, taken together, extended from plaintiff’s factory in St. Louis to New Orleans; and in the first refused instruction (R-l) plaintiff asked the court to advise the jury on the hypothesis of a joint undertaking by the four, defendants to transport the property from the place of shipment to destination. (b) Though inconsistent with that theory, plaintiff next avers the Mobile & Ohio Company had a business office in St. Louis, was doing a freight and passenger business in the State of Missouri, making through freight rates over said route from said city of New Orleans, “and undertaking to carry freight by means of said other railroads connecting with its road as aforesaid, from St. Louis to New Orleans, in its own cars and other cars furnished by it to shippers, including this plaintiff.” Said averments suggest that the pleader intended to declare against the Mobile & Ohio Company alone, as having contracted to carry over the entire route and employed the other three companies as agents and their railway as means in performing the contract of affreightment. But the subsequent averments are that plaintiff delivered the goods in controversy not to the Mobile and Ohio Company, but to the defendants (i. e. all of them) and the defendants received the goods and agreed, in consideration of certain freight charges, to carry them from plaintiff’s factory to New Olrleans. The petition then proceeds to
(c) Besides those repugnancies, allegations to show both a breach of the alleged contract of defendants to convey the goods from St. Louis to New Orleans and a breach of the legal duty of the defendants as common carriers to convey them safely, except as against the act of God or the public enemy, are intermingled in the same count, thus combining in one petition and one count, causes of action ex contractu, and ex delicto. which is not good pleading. [1 Mo. Ann. Stat. (R. S. 1899) sec. 593; Ederlin v. Jones, 36 Mo. 350; The Southworth Co. v. Lamb, 82 Mo. 242; Barnes v. Railroad, 119 Mo. App. 303.] Though no point was made against the petition by motion or demurrer, and, in the main, the case was treated in the instructions as one ex delicto on our statute providing for recovery for negligent injury to property while in transit, the petition ought to be cleared of its contradictory and confused theories, which have rendered the case well-nigh unintelligible.
(d) A shipper whose goods are damaged while being transported by a common carrier, has the choice of declaring either in assumpsit on the contract of affreightment, or in tort for breach of the duty imposed on the carrier by law to carry safely. [3 Hutchinson, Carriers (Mat. & Dick. Ed.), secs. 133 et seq. (orig. sec. 749); Heil v. Railroad, 16 Mo. App. 363; Wernick v. Railroad, 130 Mo. App. 37; Clark v. Railroad, 64 Mo. 446.]
2. No joint contractual liability of the Missouri Pacific Company and the Terminal Association with the other defendants was established. The evidence did not show either a partnership or such an association in business as would present the appearance to patrons of a general purpose to undertake jointly the transportation of freight, or a specific joint undertaking in respect of the shipments in question. The facts touching those
3. (a) Whether the bill of lading issued by the M'obile & Ohio Company constituted a contract between it and plaintiff for the carriage of the pipes from St. Louis to New Orleans, is one fundamental question in the case, and another is: was there a consideration for the exemption clauses in the bill of lading? As we have said in other cases, and as the Supreme Court intimated in Western Sash & Door Co. v. Railroad, 177
“Whenever any property is received by a common carrier to be transferred from one place to another, within or without this state, or when a railroad or other transportation company issues receipts or bills of lading-in this State, the common carrier, railroad or transportation company issuing such bill of lading, shall be liable for any loss, damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained; Provided, that in any suit to recover for any loss, damage or injury to property transported by a common carrier and one or more connecting carriers, the plaintiff may join as defendants the original carrier and all connecting carriers, and shall be entitled to recover in such action from the common carrier, railroad or transportation company, through whose negligence any loss, damage or injury to such property was sustained, the amount of such loss, damage or injury, with its costs of suit, and may prosecute such action in any county in this state in which, as is provided by law, a*501 suit may be maintained against either of such common carriers.” [R. S. 1899, sec. 5222, amended Laws 1905, p. 54.]
In' the leading decisions upon that law, it was declared the first clause of the section (which says when property is received by a common carrier to be transferred from one place to another within or without the State, etc.) implied the initial carrier might restrict its liability to its own line, nowithstanding the main purpose of the act was to make said carrier liable for negligence occurring on a connecting line; and notwithstanding, too, the next clause makes any railroad or transportation company that issues a receipt or bill of lading in this state, liable for loss, damage or injury to property caused by its negligence, or the negligence of any other carrier or company to which the property may be delivered or over whose line it may pass, and this interpretation of the statute is the settled law of the State. [McCann v. Eddy, 133 Mo. 59.] Though the opinion in the case just cited recognized the right of the first carrier to confine its liability to its own line, it restricted this right within narrower lines than those laid down previously in Dimmitt v. Railroad, 103 Mo. 433, wherein it was said, in effect, an agreement that the first carrier should be liable for loss or damage only on its own line, was equivalent to a contract to carry the property only to the end of said carrier’s line. This proposition was repudiated in McCann v. Eddy, wherein the court declared an initial carrier which issued a contract to carry goods to destination, could not for any consideration, limit its liability to losses happening on its own line or exempt itself from liability for the negligence of connecting carriers. The opinion said:
“We cannot, therefore, give such an interpretation to the statute as would permit a carrier to contract for a through shipment and at the same time exempt himself from liability on account of the negligence of connecting-carriers. Such an interpretation would in effect, operate*502 as a repeal of the vital provisions of the law which declares a conclusive liability in such case. The statute does not undertake to change the law in respect to liability of a carrier for his own negligence, but to extend it to connecting carriers as well and declare a liability for negligence without regard to which was in fault.
“Under these views of the law, no difficulty is found in giving construction to the contract. The agreement to carry from Stoutsville to Chicago is absolute and unconditional. The thirteenth condition or covenant can only be regarded as an attempt, on the part of defendant, to relieve itself from the responsibility of answering for the negligence of the carrier by which it undertook to complete the contract. The statute forbids such a qualification of the contract. It can only be held to relieve defendant from its common law liability of an insurer.”
Oases have been brought within the scope of the rule thus stated, by construing shipping receipts like the one before us, to be agreements by first carriers to transport the freight to destination, thereby making said carriers responsible for damage carelessly caused while the property was in charge of connecting companies. These precedents are conclusive that the bills of lading in question were agreements by the Mobile & Ohio Company to carry plaintiff’s pipes from St. Louis to New Orleans. [Marshall v. Railroad, 176 Mo. 480; Western Sash & Door Co. v. Railroad, 177 Mo. 641.] The bills of lading say the property was received at St. Louis by the Mobile & Ohio Company to be transported by said “company to-----and thence by railroad, steamboat or other forwarding lines with which it connects, to --” The destination is left blank in the body of the receipt, but at the foot are the words: “Consigned to T. J. Shea, New Orleans, La.;” and still further below under this heading: “list of articles,” we find •the notation “care N. O. & N. E., F. W. Birchet.” The contract says among its printed conditions, the receiving
(b) If the above views are sound, the Mobile & Ohio Company’s liability to plaintiff for the breakage depends on several matters. It became liable at common laAV as an insurer, and without reference to the statute, for damage occurring anywhere on the route, but might restrict this common law liability as insurer for a consideration ; such as a reduced rate of freight. [Hutchin
(c) Looking next at the case as coming on the statute supra, inasmuch as we have held the contract to carry was a through contract, the Mobile & Ohio Company was liable for the negligence of itself or of the New Orleans & Northeastern Company, and liable, too, for the negligence of the two minor companies as agencies or means used by it (The Mobile & Ohio) in transporting the property. There would be no difficulty on this theory of the case if the Mobile & Ohio Company had been the sole defendant. But plaintiff has joined with it the other companies, including the New Orleans & Northeastern Company, which was a connecting carrier only, by virtue of the last provision of the section, supra, which was added to the statute as an amendment in 1905. See Laws 1905, p. 504. Said proviso allows the owner of damaged property which has been transported by several connecting carriers to join in his action for damages the original carrier and all the others, and says he shall be entitled to recover from the one through whose negligence the loss was sustained. In view of this joinder, the question is whether it was incumbent on plaintiff, in order to obtain judgment against either company, to prove not only .the property was damaged by negligence, but by what company. It will be observed the statute as it stood before, permitted the original carrier, if judgment was obtained against it by the shipper and it was
4. The foregoing remarks set forth our opinion, of the general propositions of law which ought to control the trial and determination of the case, and we will now examine the instructions to ascertain if they correctly state the law.
(a) Refused instruction R-4 was incorrect because of lack of evidence to show the Missouri Pacific Company and the Terminal Association were agents of the New Orleans & Northeastern Company in handling plaintiff’s property. There is testimony to prove they were agents of the Mobile & Ohio Company to get the property from the factory to the Mobile & Ohio Company’s tracks in East St. Louis, and if they were, the latter company would be liable for their negligence. But the instruction coupled with the Mobile & Ohio Company the New Orleans & Northeastern Company as a possible principal for which the Missouri Pacific and the Terminal Association were agents.
(b) Plaintiff’s fifth refused instruction (R-5) is substantially covered in so far as it is accurate, by instruction P-1 given by the court of its own motion, and which advised the jury defendants, in undertaking to act as common carrier of freight, assumed the duty to accept and carry freight offered by any person who would pay the rate charged by said companies, except in so far as limited by special contract, but in no event could the companies escape liability for loss or damage occasioned by the negligence of themselves, their agents or servants by a contract with the shipper.
(d) The refused instructions R-7 and R-8 regarding the measure of damages, in the event of a finding for plaintiff on the two counts of the petition, were given in instructions P-5 and P-6 granted by the court, with the exception of these words: “Unless you find the facts to be that the contract of shipment was under a reduced rate, in which event the value of the pipe in New Orleans is immaterial.” The same ruling was declared in the given instruction D-7. Its effect was to preclude an award of damages if the contract of shipment provided for a reduced rate, and whether or not this ruling was right will appear from what is said infra.
(e) The instruction P-3 given by the court of its own motion, told the jury that if plaintiff paid the regular rate of freight on the shipments to the Mobile & Ohio and the New Orleans & Northeastern Company, and there was no deduction by defendants or special rate awarded plaintiff, the latter was not bound by the special contract set up in the answers.of the defendants; and if the jury further believed that defendant, the Mobile &
(f) The sixth instruction (D-6) given for defendants, was erroneous in exonerating the defendants from liability if the quantity of breakage was only such as was usually incident to the shipment of pipes. This was not the law as to the Mobile & Ohio Company, if the contract was a through one, unless there was a reduced rate of shipment, as to which the evidence is contradictory. The bill of lading provided for immunity from liability for breakage in consideration of a reduced rate, and this would exonerate from the common law liability in case there was a reduced rate.
(g) The instruction given by the court of its own motion (P-4) allowed the Mobile & Ohio and the New
(h) The given instruction D-3 was erroneous as to the Mobile & Ohio Company because it said nothing about a reduced rate of freight as the condition on which the restriction of the common law liability of the Mobile and Ohio must be based. On the contrary, instruction D-5, given for defendants, rightly took account of the rule that there must have been a reduced rate of freight to exempt said company from liability if breakage occurred enroute from any cause except the act of God.
(i) The instruction D-7 and the last clauses of instructions P-5 and P-6, precluded the jury from considering the value of the property at New Orleans if the contract of shipment was not for a reduced rate. Just what was meant by this advice is obscure; but we suppose it was given on the theory that plaintiff’s measure of damages, if he was entitled to recover at all, would be the difference between the value of. the property at destina-tion in its damaged state and what its value would have been if undamaged; and it looks like the intention was to prevent a verdict for plaintiff if there was a reduced rate. Even if such a rate was allowed, these companies would be liable for damage due to careless handling; that is, the guilty one would be. If a full rate was charged, the Mobile & Ohio Company would be liable for the entire breakage. In the latter contingency the Mobile & Ohio Company was an insurer, and the measure
(j) Tbe instruction D-8 given for defendants involved tbe notion that tbe burden was on plaintiff to prove which carrier’s fault damaged tbe pipes, but tbe charge lost sight of tbe possible liability of tbe Mobile & Ohio Company as an insurer in tbe event tbe charge for carriage was not reduced.
(k) As regards notice of claim for loss, tbe jury were instructed (D-l) written notice must have been-given in writing to tbe agent at tbe point of delivery within thirty days after delivery, and if no such notice! was given to tbe agent of tbe New Orleans & Northeastern Company, tbe suit could not be maintained, unless tbe jury found tbe plaintiff, after said thirty days, made claim in writing to said company (N. O. & N. E. Co.) and tbe Mobile & Ohio Company, as its agent for that purpose, and this notice was accepted and treated as a claim under said proviso; or unless, further, tbe jury found, under other instructions, tbe contract and bill of lading was not made at a reduced rate. Tbe latter proposition was decided by tbe Supreme Court in George v. Railroad, 214 Mo. 551, 113 S. W. 1099 and under said authority there must be a consideration to sustain tbe stipulation making notice of a claim for damages a condition precedent to recovery by tbe shipper; but as said repeatedly, tbe jury might have found there was a consideration in tbe present case. Tbe instruction was otherwise erroneous. Tbe correspondence with tbe General Freight Agent of tbe Mobile and Ohio Company
5. The Terminal Association and the Missouri Pacific Company would be liable in tort for their negligence, but as there was none proved against them, the court was right in directing a verdict in their favor. And we would sustain the judgment for the other two defendants for want of evidence to prove which was negligent, but for the fact that the petition was treated as counting on a possible liability without regard to negligence, and some of the given instructions (P-3 and P-4) submitted this ground of recovery.
6. We have been pressed to affirm this judgment as to the Terminal Association and the Missouri Pacific Company even if it must be reversed and the cause remanded as to the other defendants. Judgments are sometimes reversed as to one party and affirmed as to another. [Hunt v. Railroad, 89 Mo. 607, 609; Kleiber v. Railroad, 107 Mo. 240; State ex rel. v. Tate, 109 Mo. 270.] We have found no case in which this Avas done except when the judgment on appeal settled the litigation as to all parties. If a remand is necessary, such a course Avould seem to be in violation of the statute which says there must be but one final judgment in an action. [R. S. 1899, sec. 733.] Said statute has been held to mean the one final judgment for which it provides shall dispose of the controversy as to all the parties to the cause. [White Lime Co., v. Bauman, 55 Mo. App. 204; Sater v.
• The judgment is reversed and the cause remanded.