115 Ky. 43 | Ky. Ct. App. | 1903
Opinion op the court by
Reversing.
Appellees, S. D. Chestnut & Bro., shipped a car load of turkeys froan Trenton, Ky., to Chicago, Ill., on December 11, 1898. The car was carried by the Louisville & Nashville Railroad Company to Evansville, Ind., and there delivered to the Evansville & Terre Haute Railroad Company, which took it to Terre Haute, and there delivered it to the Chicago & Eastern Illinois Railroad Company, which transported át to Chicago all right, but failed to take it from its yard to the unloading track at Chicago ; and while
Ere written contract, so far as is material, is in these, words:
“Received by the Louisville & Nashville Railroad Company ithe following described live stock to be transported in accordance with the terms and conditions of the contract entered into below:
“Tariff rate on this shipment from Trenton to Evansville is $62.00 per car.
*48 “Contract for Transportation of Live Stock.
“Trenton, Ky., Station, Dec. 11, 1898.
“This agreement made between .the Louisville & Nashville Railroad Company and its connecting lines of the first part and S. D. Chestnut & Bro. of the second part Witnesseth, That, whereas the said Louisville & Nashville Railroad Company and its connecting lines transport live stock only as per above tariff; but in consideration that the said party of the first part will transport for the said party of the second part one car of poultry from Trenton, Kentucky, to Evansville, Indiana, station at the rate of thirty-one dollars per car and a free passage to the owner or his agent on the train with the animals (if .shipped in car load quantities) , the same being a special rate lower than the regular rate mentioned in the said tariff, the said party of the second part hereby releases .said party of the first from all liability in the transportation of said animals, except as hereinafter agreed, and agrees that such liability shall be only that of a private carrier for hire; and it is further distinctly understood by the parties hereto that all liability of said Louisville & Nashville Railroad Company as carrier of said animals shall cease at its destined station if on said company’s railroad, or if destined to a point beyond said company’s railroad, then at said company’s station at its terminus, when ready to be delivered to the owner, consignee, or carrier, whose line may constitute a part of the route to destination. . . .
“And it is further agreed that when necessary for said animals to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of the said animals may be made to such other, carrier or carriers-for transportation, upon such terms and conditions as the carrier may be willing to accept: provided that the terms and*49 conditions of this bill of lading shall inure to such carrier or carriers, unless they shall otherwise stipulate; but in no event shall one carrier be liable for the negligence of another.”
The proof shows that appellees were charged $22 for the poultry car Tacoma, $31 for transporting it from Trenton to Evansville, and $54.40 as the freight from Evansville to Chicago; making, in all, $107.40, which was paid by the consignees in Chicago. It is insisted for appellees that the' written contract is an undertaking by the Louisville & Nashville Railroad and its connecting lines to carry the car Tacoma from Trenton to Chicago; that they are all parties of the first part, who received the car to be carried to its destination, and are all bound alike.by the stipulations of the contract to transport the car from Trenton to Evansville, and from Evansville to its destination. It is also urged that the limitations of the contract are not limitations on the obligation of any of the lines, but only an attempt to limit their liability by reason of the obligation; and the case of Ireland v. Mobile & Ohio Railroad Company, 105 Ky., 400, 20 R., 1586, 49 S. W., 188, 453, is relied on. But it will be observed that while the writing is a receipt by the Louisville & Nashville .Railroad Company for the poultry car Tacoma, consigned to Chicago, 111., it is stipulated that the party of the first part will transport the car from Trenton, Ky., to Evansville, Ind., and that all liability on the parit of the Louisville & Nashville Railroad Company for the car shall cease at its terminus, When ready to be delivered to the connecting line; and it is also agreed that the oar may be transferred, to such connecting lines as are necessary to reach its point of destination. Taking the contract as a whole, we think it means that the Louis
As to the appellant, the Chicago & Eastern Illinois Railroad Company, a different question is presented. It had no officer in the State, and the process for it was served on the president of the Louisville & Nashville Railroad Company, on the idea that the Louisville & Nashville Railroad Company was its agent in the "State in the making of the contract sued on, and therefore the process might be properly served on such agent. In Nashville, etc., Railroad Co. v. Carrico, 95 Ky., 489, 16 R., 66, 26 S. W., 177, under a bill of lading similar to that before us, it was held that as the contract was made in Marion county by the Louisville & Nashville Railroad Company, acting as agent for the appellant, the Nashville, etc., Railroad Company, the contract must, within the meaning of section. 73 of the Civil Code of Practice, be regarded ás made there by appellant itself, and as, by that section, an action against a common carrier upon a contract .to carry property may be brought in the county in which the contract is made, the Marion circuit court properly had jurisdiction of the action. .This case was followed in P., C., C. & St. L. v. Viers, etc., supra; but in both these casés the summons was served on an agent of the defendant in this State. By subsections 3, 4, section 51, of the Civil Code of Practice, it is provided that if the defendant operate a railroad the summons “may be served upon the defendant’s passenger or freight agent stationed at or nearest to county seat of the county in which the action is brought.”. The words “passenger or freight agent stationed at or nearest to the county seat of the county” must refer to a person who is in the service of the defendant, and is stationed by it ,at some point. The Louisville & Nashville Railroad Company, although it may
After its objection to the process was overruled, the defendant filed answer to the merits, and there was a trial, and judgment on the whole case. From this judgment the
Judgment reversed, and cause remanded for further proceedings consistent herewith.