Richardson v. Louisville & Nashville R. R.

129 Ky. 449 | Ky. Ct. App. | 1908

Lead Opinion

Opinion of the Court by

Judge Carroll —

Reversing.

On January 19, 1893, C. Richardson shipped from Irvine, in’Estill county, Ky., to Cincinnati, Ohio, a carload of hogs. The car was carried hy the Richmond, Mcholasville, Irvine & Beattyville Railroad Company to Richmond, Ky., and then turned over to the Louisville & Nashville Railroad Company, to be carried hy it to Cincinnati. When the car reached Cincinnati and was delivered, the hogs were in had condition and some of them were dead. Richardson thereupon brought an action against the Richmond, Nicholasville, Irvine & Beattyville Railroad Company to recover damages, charging that the loss was due to the negligence of the carrier. That company showed that it transported the hogs to Richmond in due time and turned them over to the Louisville & Nashville Railroad Company in good condition. On this proof it was held that he could not recover against that company. R., N., I. & B. R. Co. v. Richardson, 43 S. W. 465, 19 Ky. Law Rep. 1495; Id., 66 S. W. 1035, 23 Ky. Law Rep. 2234. After his action against that company had been dismissed, Richardson on April 13, 1905, brought this suit against the Louisville & Nashville Railroad Company, charging that the losses were due to its negligence. Among other things, appellee pleaded the 5-year statute of limitation; the action not having been brought until something over 12 years after the cause of action accrued. The circuit court held the plea good, and dismissed the action, and Richardson appeals.

The hogs were shipped under a written contract, which is as follows:'“Irvine, Ky., Station, Jan. 19, 1893. This memorandum of a special contract of carriage between the Richomnd, Nicholasville, Irvine & Beattyville Railroad and C. Richardson, of Irvine, Ky., witnesseth: Whereas, the said Richardson has this day shipped a carload of hogs to be carried by the Richmond, Nicholasville, Irvine & Beattyville Railroad from Irvine, Ky., to Richmond, both points on its own line of road, and by it as agent of shipper to be forwarded to Green & Embry at Cincinnati, Ohio, on the same terms as this contract: In consideration of the special rate of $36 for ear guaranteed by said railroad company between said point of shipment' and Cincinnati, Ohio, the shipper hereby agrees to load, unload, feed, water, and take all proper care of said stock, and insure the said railroad company and all connecting lines over which said stock may pass between point of shipment and destination from all loss or damage which may be incurred by delays in transportation or delivery, or arising out of its responsibility as master over its agents or servants (gross and wanton negligence excepted) growing out of this shipment. The shipper hereby further agrees that the actual value of said stock at the time and place of shipment shall govern the settlement of all damages for which the carriers may be liable, and declares the value of the stock herein described does not exceed $12 for each hog. In witness hereof, the agent of the company and the owner of the stock, or his authorized agents, have fixed their signatures to two copies of this agreement (signed) C. Richardson, Owner. J. W. Rock, Agent for R., N., I. & B. R. R. Co.” The plaintiff alleged in his petition that by agreement between the two railroad companies freight was received by either destined to points on the line of the other, and by mutual agreement the rates were made and charged by each for the entire carriage to the point of destination, this charge being by mutual agreement divided between the two companies; that the written contract above quoted was made by the initial carrier pursuant to this agreement; that the defendant was to receive and did receive its part of the price charged for carrying the hogs; that Rock, in making the written contract, was acting for and on behalf of both roads; that both roads accepted and carried the stock under the written contract; and that the defendant company was the only connecting carrier between Richmond. Ky., and Cincinnati, Ohio.

By section 2534 of the Kentucky Statutes of 1903, an action upon a written contract may be commenced within 15 years after the cause of action accrued. By section 2515, Ky. Stats., 1903, an action upon a contract not in writing, signed by the parties, express or implied, may be commenced within 5 years next after the cause of action accrued. It is insisted that this action is upon an implied contract within the meaning of section 25.15, supra, and hence barred by the 5-year statute. But this action is not based on an implied contract. The contract was in writing, signed by Richardson and J. "W. Rock, agent for the Richmond, Nicholasville, Irvine & Beattyville Railroad Company. It is made in consideration of $36, which is the entire charge for the transportation of the cattle from Irvine, Ky., to Cincinnati, Ohio. If there was a traffic agreement by which the initial carrier was authorized to make this contract for the Louisville & Nashville Railroad Company, or if the Louisville & Nashville Rail-, road Company accepted the goods and carried them under the contract made with the Richmond, Nieholasville, Irvine & Beattyville Railroad Company, its acceptance of the goods would be a ratification of the act of its agent in making the contract and would relate back to the time it was made. The principal, who accepts the benefit of a contract made for him by Ms agent, not only ratifies the action of the agent, but the ratification relates back to the beginmng. 1 Parsons on Contracts, *50, *51. That the second carrier, when it accepted the stock from the initial carrier, was bound by the contract made with it, has been held by .this court in a number of cases. Nashville, etc., R. Co. v. Carrico, 95 Ky. 489, 26 S. W. 177, 16 Ky. Law Rep. 86; P., C., C. & St. L. R. Co. v. Viers, 113 Ky. 526, 24 Ky. Law Rep. 256, 68 S. W. 469; L. & N. R. Co. v. Chestnut, 115 Ky. 43, 72 S. W. 351, 24 Ky. Law Rep. 1846; I. C. R. Co. v. Curry, 127 Ky. 643, 106 S. W. 294, 32 Ky. Law Rep. 513.

It is insisted that the written contract only obligates the initial carrier to carry the freight from Irvine to Richmond, and to forward it as agent of the shipper from Richmond to Cincinnati; that there is nothing in the contract placing any obligation upon the second carrier. But, when the Louisville & Nashville Railroad Company accepted the freight under the contract made with the initial carrier, it bound itself to transport the freight to its destination, which was upon its line of road. The legal effect of the acceptance was the same as if the connecting carrier had in the first place signed the contract. The initial carrier was the agent of the connecting carrier, and it was liable on the contract made with the initial carrier.

As the contract was in writing, this action was upon a written contract made by the defendant, within the meaning of section 2514 of the Kentucky Statutes of 1903, and the demurrer to the plea of limitation should have been sustained.

Judgment is reversed, and cause remanded for further proceedings consistent herewith.

Judges Hobson and Barker dissent.

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Rehearing

On Petition eor Rehearing.

In the petition for rehearing it is suggested that the court in the opinion made no reference to the question raised by appellee in the lower court, and urged by it in the brief filed in its behalf in this court, that the Madison circuit court had no jurisdiction to hear and determine this case. The action was brought under section 73 of the Civil Code of Practice, providing that: “Excepting the actions mentioned in section 75, an action against a common carrier, whether a corporation or not, upon a contract to carry property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the contract, is made; or in which the carrier agrees to ■deliver the property. * * *” It will thus be seen that the venue of the action is limited to either one of three counties. In the brief filed on the original hearing, as well as in the petition for rehearing, it is stated that the contract was entered into in E still county, that the appellee’s residence is in Jefferson county, and the property was to be delivered in Kenton county. Neither of these facts appear in the record. The jurisdictional question was not properly raised or made in the lower court. For this reason it was not noticed in the opinion, and would not now be considered, except for the insistence of counsel that the plea to the jurisdiction of the Madison circuit court should have been sustained.

Before entering its appearance in the Madison eir,cuit court, the appellee filed the following special demurrer: “The defendant demurs specially to the plaintiff’s petition herein on the ground that this court has not jurisdiction of this cause of action set forth in the plaintiff’s petition and amended petition.” It did not file any other pleading of record stating the reasons why the Madison circuit court did not have jurisdiction, or setting out that it resided in Jefferson county, or that the contract was made in Estill county, or that the property was to be delivered in Kenton county.- The petition did not disclose the fact that the Madison circuit court was not the county in which the contract was made or the county in which the defendant resided. In the absence of a pleading showing a want of jurisdiction, the lower court properly overruled the special demurrer. Section 92 of the Civil Code of Practice provides that: “A special, demurrer is an objection to a pleading which shows: (1) That the court has no jurisdiction of the defendant or of the subject of the action; or (2), that the plaintiff has not legal capacity to sue; or (3), that another action is pending, in this State, between the same parties, for the same cause; or (4), that there is a defect of parties, plaintiff or defendant. Either of said grounds of objection, shown to exist by a pleading, is waived, unless distinctly specified by a demurrer thereto, except the objection to the jurisdiction of the court of the' subject of the action, which objection is not waived by failing so to make it. * * * ” When, the petition, to which it is desired to demur specially upon the ground that the court has no jurisdiction of the defendant or of the subject of the action, fails to disclose the want of jurisdiction, the defendant, if he desires to raise the question, should point out distinctly in an answer or other pleading, as provided in section 118 of the Civil Code of Practice, the reasons why the court has not jurisdiction, so that the court may be .informed of the grounds upon which the special demurrer is rested.

Circuit courts are courts of general jurisdiction, and it will be presumed, in the absence of a showing to the contrary, that they have jurisdiction of the defendant. The Madison circuit court had jurisdiction of the subject-matter of the action, and as the pleading to which the special demurrer was filed did not disclose the want of jurisdiction over the person of the defendant, and the objection was not made by answer or other pleading, it was waived.

The petition for rehearing is overruled.