Walker v. St. Louis & San Franciso Railroad , 162 Mo. App. 374 ( 1912 )

CAULFIELD, J.

(after stating the facts).— Whatever may have been the theory on which this case was' brought, we are convinced that under the evidence the joint verdict and judgment against the defendants cannot stand. Plaintiff’s counsel suggests that the action “is for concurrent and several negligence of both appellants” and says that “respondent has proven that the goods were in a damaged condition when delivered to the connecting carrier, and that they were still further damaged while in the possession of the connecting carrier.” But such proof does not show concurrent negligent acts or omissions, if indeed it shows any negligence. It shows merely that the goods received different injuries at different times while in different custodies. If any inference of negligence is permissible it is of several and disconnected acts of negligence not contributing to produce a common injury and not combining to produce several injuries, but each of itself producing a different injury. Each is, or would be, a separate and distinct wrong perpetrated by the defendants severally and would not as negligence justify a judgment against both for either injury or against either for both injuries. The joint verdict and judgment cannot stand on the ground that they are based on concurrent acts of negligence. Nor is plaintiff helped by treating his case as coming within the provisions of our statute (See. 5446, R. S. 1909), or the provisions of the Interstate Commerce Act. [Act Cong. Feb. 4, 1887, c. 104, Sec. 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), amended by Act, Cong. June 29, 1906, c. 3591, sec. 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1909, p. 1163)]. Each of such, state and federal acts in effect renders the initial carrier liable at the suit of the shipper for injuries resulting from its own negligence or the negligence of the connecting carrier, but each provides, in effect, that the initial carrier may recover over from the connecting carrier any amount it may be required to pay on account of the latter’s fault. Such statutes are not to be construed to authorize a joint judgment against the initial and connecting carriers in the absence of joint or concurrent negligence on their part. The connecting carrier is of course not liable for the sole negligence of the initial carrier and should not be joined in a judgment therefor. The initial carrier should not be joined with the connecting carrier in a judgment for the latter’s negligence, for the reason that a joint judgment would be conclusive between the defendants that they were joint tortfeasors and would be a bar to the initial carrier’s right, given by each of said statutes, to have indemnity in an action over against the guilty company. [Blackmer & Post Pipe Co. v. Mobile & Ohio Railroad Co., 137 Mo. App. 479, 505, 119 S. W. 1; Crockett v. Railroad, 147 Mo. App. 347, 374, 126 S. W. 243.]

We do not wish by the foregoing to be understood as holding that our statute is applicable in this-action. This was an interstate shipment and not governed by the Missouri statutes, the property having-been received by the first carrier outside of this state. [Coal & Coke Co. v. Railroad, 116 Mo. App. 214, 224, 92 S. W. 714; Eckles v. Mo. Pac. Ry. Co., 72 Mo. App. 296, 305.] If, however, we proceed farther and treat the case as being one at'common law, still, under the facts of this case each carrier was liable only for loss or damage occurring on its own line and a joint juclgment against them was improper. And if we indulge the presumption that such loss or damage occurred on the line of the connecting or final carrier, that would not justify a joint judgment against both. The judgment is reversed and the cause is remanded.

Reynolds, P. J., and Nortoni, J., concur.