Blackmer & Post Pipe Co. v. Mobile & Ohio Railroad
119 S.W. 13
Mo. Ct. App.
1909
Check Treatment
GOODE, J.

(after stating the facts). — This case is similar in some aspects to Blackmer & Post Pipe Co. v. Mobile & Ohio Ry. Co., the New Orleans & Northeastern Ry. Co., the Missouri Pacific Ry. Co. and the Terminal Association, infra, p. 479, 119 S. W. 1. In the present case the Illinois Central Railway Company occupies the position of final carrier instead of the New Orleans & Northeastern Company^ and hence is one of the defendants, while the company last named is a defendant in the other case. But the evidence and the theories on which the two causes were tried were not identical. The same confusion in stating divers grounds of recovery is found in the petition in both cases, though, in the main, the plaintiff insisted on a judgment against .that carrier only whose negligence caused the damage, but was not quite consistent in pursuing this theory, as will be seen in the present case upon, reading the given instruction P-4. Said instruction told the jury that if they found plaintiff paid the full freight rate for the shipment, and defendants made no deduction or special rate for him, he was not bound by the special contract in the bill of lading which was set up in the answer of the Mobile & Ohio Company and referred to in the answers -of the other defendants, but the jury might disregard the same except the clause providing that no carrier should be liable for loss or damage not occurring on its portion of the route, which clause might be considered in determining whether the railroad companies acted independently >or jointly and whether their liability to plaintiff was joint or several. Every other instruction asked by plaintiff proceeded on *144the theory of negligence only, and that plaintiff’s recovery must be confined to the company found to have been guilty of negligence. The receipts issued by the Mobile & Ohio Company axe like those issued in the other case, except in designating as the final carrier the Illinois Central Railway Company. They are through contracts, as a round rate for the entire journey was charged and in the parts of the receipts which contracted to transport the property, there is no designation of the point to which the Mobile & Ohio Company agreed to carry; whereas at the foot of the receipts the destination was shown to be New Orleans. We refer to the opinion in the other case for the reasoning and authorities on which this ruling is based. Plaintiff’s secretary testified the arrangement for shipping was unusual in the present instance, and was that the Mobile & Ohio Company should take the pipes to Jackson, Tennessee, and the Illinois Central Company from there to New Orleans, for a through rate; that the arrangement was with the Mobile & Ohio Company and the Illinois Central Company jointly, and was made with the freight offices of the two companies in St. Louis. It is insisted this testimony, taken in connection with the receipts, shows a contract with the Mobile & Ohio Company to carry only to the end of its line, and a separate agreement with the Illinois Central Company to carry from there to New Orleans. Anterior verbal agreements with the Mobile & Ohio Company were merged in the contractual terms of the bill of lading, which, as we have said, was a contract to carry through. [Kellerman v. Railroad, 136 Mo. 177; 1 Hutchinson, Carriers (M. & D. Ed.), sec. 167.] Moreover, the testimony of said witness had no tendency to show distinct contracts by the Mobile & Ohio and the Illinois Central Companies that each should carry only over its own line, but, instead a joint contract with both of them to carry from St. Louis to New Orleans. As said, this joint arrangement, if one was made, was mentioned in a vague way in one of the instructions *145(P-4), but was hardly predicated as ground for a verdict. Tlié contract being a through one, the Mobile & Ohio Company (appellant) would be liable for any breakage occurring anywhere on the route whether from negligence or not, unless there was a consideration for the restriction of its common law liability; that is to say, unless there was a reduced freight rate, said company was liable all the way as an insurer. And as the contract was a through one, it was liable for negligent breakage anywhere on the route whatever rate was charged. See opinion in Blackmer, etc., Co. v. Mobile & Ohio and New Orleans & Northeastern Cos. The instructions given at plaintiff’s request proceeded on the theory of negligence, except P4. However, while plaintiff’s given instructions asked a verdict for careless damage and against no carrier except the culpable one, they were not explicit enough considering the possible effect of instruction P-4, in declaring neither of the defendants was liable except for negligent injury occurring while the goods were in its custody. This is the law of the case, not because the Mobile & Ohio Company had the right to limit its liability, after contracting to carry through to losses due to negligence on its own line, but because plaintiff chose to join with it the other defendants, and as we held in the other case, thereby assumed the burden of proving which defendant caused the loss. Most of the instructions requested by defendant and refused by the court, omitted the question of whether a reduced rate was charged or not, and proceeded on the theory that no defendant, not even the Mobile & Ohio Company, could be liable in any contingency for the negligence of any other carrier. This would not be true as regards the Mobile & Ohio Company, unless a reduced freight rate was charged, for, otherwise, as stated supra, having issued a through bill of lading, it would be liable as an insurer for loss occurring anywhere on the route. The fourth refused instruction, while perhaps it declared the *146law as between the two railway companies mentioned in it, was erroneous in implying there was a presumption against plaintiff that if the Illinois Central Company received the cars from the Mobile & Ohio Company without objection, they were in good order at the time. The same may be said of the sixth refused instruction. The eighth was erroneous because it assumed the sewer pipes were shipped under a contract exempting the Mobile & Ohio Company from liability for breakage while in transit; whereas the stipulation against liability for breakage was good only if there was a consideration for it, which was a. disputed issue. The ninth refused instruction was erroneous because the evidence tended to prove the Missouri Pacific and Terminal Association were agents of the Mobile & Ohio Company in handling the pipes, and said instruction exonerated the latter company if the pipes were damaged by the Terminal Association or the Missouri Pacific Company. The tenth was erroneous in ignoring the liability of the Mobile & Ohio Company as an insurer if the regular rate was charged, for breakage occurring from any cause on the entire journey, except from the act of God and the public enemy. The court gave three instructions for appellant. The first two (A and B) were erroneous and should not have been given for the reason they omitted to submit the issue of consideration for exemption from liability, and the third (C) was erroneous because it exempted all the defendants from liability even for breakage due to negligence.

The verdict cannot be upheld for the evidence does not show the injury to the property occurred while it was in the custody of either the Mobile & Ohio Company or its agents the Missouri Pacific Company and the Terminal Association. The judgment is, therefore, reversed and the cause remanded to be retried according to the views expressed in this opinion and the opinion in the other case.

All concur.