McLendon v. Wabash Railroad

119 Mo. App. 128 | Mo. Ct. App. | 1906

ELLISON, J.

The plaintiff began this action before a justice of the peace to recover damages for injury to a shipment of some fish from New York City to Kansas City, Missouri. He recovered judgment in the cir-, cuit court and both defendants appealed.

That action is prosecuted against both defendants on the theory that they, together, form one through line for the shipment of freight from New York to Missouri; neither road, separately reaching the full distance between the two points. The written contract of shipment was made with the West Shore Company, to which road the freight was delivered in good order and condition. It was shipped over that road and by it delivered to the Wabash Company, which brought it to Kansas City and delivered it in a spoiled condition to plaintiff. That condition resulted from delay and exposure. The written contract with the West Shore contained two stipulations which bear directly on a vital question in the case. One was that the West Shore only agreed to carry to the end of its own line; and the other was that it was not to be liable for any damage not occurring on its road.

In actions under the statute of this State in relation to connecting carriers of freight, it was not sufficient to absolve the initial carrier from liability for the connecting carrier’s negligence, that it was agreed that he should not be liable for negligence of such connecting carrier; for such agreement would be in the face of the statute. It was necessary that the contract should be that the initial carrier would only transport to the end of his own line [Marshall v. Railroad, 176 Mo. 480, and Western Sash Co. v. Railroad, 177 Mo. 641, approving cases in this court of Bank v. Railroad, 72 Mo. App. 82; Marshall v. Railroad, 74 Mo. App. 81, and Popham v. Barnard, 77 Mo. App. 628.]

But the contract in this case was made in the State of New York and the plaintiff herein has not brought or tried the action as being governed by the statute. By the common law a carrier merely receiving goods for transportation to a point beyond his own line, engages only to carry them to the end of his own line and deliver them to the connecting carrier [Eckles v. Railroad, 112 Mo. App. 1. c. 249; 42 Mo. App. 248.]

But, as stated in the beginning, the plaintiff’s theory is that the two roads formed themselves into a single and through line of transportation and in that capacity the West Shore received the freight and the Wabash completed the carriage and delivered it to plaintiff. Whatever may have been the arrangement between these defendants, we cannot refuse to them and this plaintiff the right to contract as they please when uncontrolled by statute or public policy. In this case the contract of shipment expressly stipulates that the freight in question was only to be carried by the West Shore to the end of its own line, and further, that it would not be responsible for a loss occurring beyond its own line. We can discover no reason (no statute interfering) why these stipulations shall not bind the parties. The case of Eckles v. Eailroad, 112 Mo. App. 248, relied upon by plaintiff, was a totally different case from this in the essential particular that that was an express written agreement for a through carriage from initial point to destination and there deliver to consignee; and the stipulation as to non-liability for loss on other roads, was construed to apply to the several connecting carriers for the purpose of fixing liability as between themselves. The contract here, as we have seen, is altogether another thing and wholly unlike the contract in that case.

From the foregoing considerations it is apparent that the theory upon which plaintiff’s case is built must fail and that no cause of action was made out against the defendants. We regard that plaintiff’s first instruction was not only not supported by the evidence, but that it was in direct conflict with it. We have already shown that the two defendants did not receive the freight at the initial point. The second instruction was likewise not supported by the evidence.

Since we have determined that the written contract of shipment destroys the theory upon which plaintiff’s case was tried, it may not be necessary to say anything further in that respect; yet since the point has been urged upon us we deem pertinent to add that we do not regard the theory of plaintiff’s case as aided by any supposed agency of Staley. His own declarations of agency for these defendants so as to bind them into an association of carriers operating, in effect, one through line, is plainly not sufficient for that purpose. Nor do we see that anything else was shown to make of him an agent for the two defendants in a combined or single capacity for through shipments of freight.

The judgment is reversed.

All concur.