Nenno v. Chicago, Rock Island & Pacific Railway Co.

105 Mo. App. 540 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above.)

1. In Coates v. U. S. Express Co., 45 Mo. 238, the Supreme Court of this State repudiated the English doctrine, that a carrier knowingly receiving a parcel consigned to' a given place, contracted to carry it there unless a different understanding was made known to the owner, and approved the American rule then prevailing, to the effect that no responsibility as a carrier is imposed upon the receiving carrier beyond its own line after due care in forwarding; unless business usage, the custom of' the carrier or its conduct showed that it received the freight as carrier for the whole route. The subject is now controlled in this State, as in many other States, by statute. The thirtieth general assembly, by act approved June 11, 1879, Laws of Missouri, 1879, p. 171, provided that a common carrier receiving property for transportation from one point to another within or without this State, should be liable for loss caused by its-own-negligence or the negligence of any other carrier over whose lines the property might pass and conferring upon the carrier receiving the shipment, recourse against the negligent carrier for damages it was required to pay, and this act has continued the law of the State. R. S. 1889, sec. 944. This legislation has received the consideration of the Supreme Court in numerous cases and has been adjudged valid, and not repugnant to any provision of the State or federal constitution, and it was further held by that tribunal that the receiving carrier might, by special contract, restrict its liability to: such loss or damage only as occurred upon its own line. Dimmitt v. Railway, 103 Mo. 433; Nines v. Railway, 107 Mo. 475.

However, in the later case of McCann v. Eddy, 133 Mo. 59, the rule was abridged to the extent that such carrier can not contract for a through shipment to a, point beyond its own line and at the same time exempt itself from liability for negligence, of the connecting or forwarding carriers completing the transportation. The ruling of the Supreme Court in the last cited case was affirmed by the Supreme Court of the United States (174 U. S. 580), which last decision was invoked in the last consideration of the act by the Supreme Court of Missouri. Western, etc., Co. v. Railway, 76 S. W. 998.

The shipment of the goods and the contract of transporation were made in the State of Illinois, at Joliet, and in absence of the above statute, the receiving carrier could limit its common law liability, and would not be liable beyond its own line. Snider v. Adams Ex. Co., 63 Mo. 376; Coates v. Railway, supra; Dimmitt v. Railway, supra.

It has not escaped notice that the bill of lading is silent as to the connecting point over the line of appellant, to which the shipment was to be transported, probably by omission to properly fill up the blank in the bill of lading for such insertion; but it is clear from the general terms of this evidence of the contract between the carrier and the shipper, that transportation merely to its terminal point and delivery there to the connecting carrier was intended.

In the case of Minter v. Railway, 56 Mo. App. 282, a like omission is perceived and thus disposed of by the court:

“We do not think the fact that the name of the station where the transition on its line ended was not mentioned in the bill of lading is of importance. Its exemption from liability under the special agreement set forth in the bill of lading begun after it had safely, and without unreasonable delay, transported and delivered the plaintiff’s oats to the connecting carrier. The language of the exemption clause was, we think, sufficiently specific for every purpose.”

The same inaccuracy is manifest in the bill of lading considered by this court in Patterson v. Railway, 56 Mo. App. 657, and was regarded by the court as immaterial, and not affecting the restriction of the liability in the contract.

Respondent in argument invoked a statute of the State where the delivery of the goods to the first carrier was made, but it can not be considered, as no proof was introduced of its existence and the presumption obtains that the common law prevailed in that State. Edwards, etc., Co. v. Stevenson, 160 Mo. 516. No presumption can be indulged that the State of Illinois has enacted statutory laws identical with or similar to those of this State (Morrissey v. Wiggins Ferry Co., 47 Mo. 521); hence the liability of appellant as carrier was restricted to its own line, and converted into that of forwarding-agent of the shipper for the connecting lines, completing the transporation as the Missouri statute was inoperative and could have no effect extraterritorially upon the agreement made in a sister State. Connell v. W. U. Tel. Co., 108 Mo. 459; Stanley v. Railway, 100 Mo. 435; State v. Gudener, 134 Mo. 572.

2. The complaint filed before the justice of the peace nowhere connects the Frisco Railroad with the reception or shipment of the goods, and hence no cause of action was stated against that company. The Rock Island and Terminal Companies were summoned on the motion of plaintiff to defend a cause of action, of which there was no statement whatever filed before the justice. The Peoria, the only company against which any cause of action was stated, was dropped from the suit and a judgment was rendered by the justice against the Frisco, Rock Island and Terminal Companies, from which, they appealed. In the circuit court there was filed what is termed “an amended' complaint” upon which the cause was tried. This complaint, though termed “an amended complaint,” is in fact an original statement. It could not he otherwise, for the reason there was no statement whatever of a cause of action filed before the justice of the peace against these defendants, therefore, there was nothing by which to amend in the circuit court. Brashears v. Strock, 46 Mo. 221; Peddicord v. Railway, 85 Mo. 160; Rechnitzer v. Candy Co., 82 Mo. App. 311. There being no statement of a cause of action filed before the justice, his judgment, as is shown by his transcript, was an absolute nullity. Ex Parte O’Brien, 127 Mo. 477. There was, therefore, nothing to appeal from. Defendant objected to the amended statement filed in the circuit court. The defect, therefore, of the want of any statement by which to amend, was not waived by going to trial. Brashears v. Strock, 46 Mo. l. c. 223. To obtain jurisdiction of a cause three' things are necessary. Black in his work on judgments (vol. 1, sec. 242) said: ‘ ‘ First, the court must have cognizance of the class of cases to which the one to be adjudged belongs. Second, the proper parties must be present. And third, the point decided must be, in substance and effect, within the issue.” In Railway Company v. State, 55 Ark. l. c. 205, the court said: “Jurisdiction is defined to be ‘the right to adjudicate concerning the subject matter in the given case.’ ” In Babb v. Bruere, 23 Mo. App. 604, jurisdiction is defined to be “the power to hear and determine the particular cause.” In Hope v. Blair, 105 Mo. 85, it is said there are three essentials to jurisdiction. “First, the court must have cognizance of the class of eases to which the one adjudged belongs. Second, the proper parties must be present. And third, the point decided must be, in substance and effect, within the issue,” thus approving and adopting the definition of jurisdiction given by Black in his excellent work on judgments.

One of the essential ingredients to vest jurisdiction in the justice was absent, that is, there was no issue presented by any statement or pleading of any cause of action whatever filed before him. He was, therefore, without jurisdiction to hear and determine any subject-matter pending before him. The justice being without jurisdiction none was conferred on the circuit court by appeal (Turk v. Funk, 68 Mo. 18; Sandige v. Hill, 70 Mo. App. 71), and it was not competent for the parties to confer jurisdiction on the circuit court by appearing and going to trial. White v. Railway, 72 Mo. App. 400; Bank v. Doak, 75 Mo. App. 332; Belshe v. Lamp, 91 Mo. App. l. c. 479; Fields v. Maloney, 78 Mo. 172; Barnett v. Railroad, 68 Mo. 56.

The judgment is therefore reversed.

Bland, P. J., and Goode, J., concur.