Citation Numbers: 13 S.W.2d 1111, 222 Mo. App. 1135
Judges: PER CURIAM:
Filed Date: 12/17/1928
Status: Precedential
Modified Date: 7/5/2016
The evidence shows that there was a decline in the market between the 17th day of September and the 19th day of September.
The court found for plaintiffs and assessed their damages at $277.32. Defendant after an unsuccessful motion for a new trial, brings the case here on appeal.
Plaintiffs contend that the action is one at common law for neglect in furnishing cars when it was within the appellant's power so to do. However, from reading the petition it seems to us that the action is for failure of the agent to notify the plaintiffs that the cars were in Kirksville on September 17th. However, as we view the case this difference is not important, as in any event the validity of the agreement to furnish cars at a given time is the foundation of the suit.
This is an interstate shipment from Kirksville, Missouri, to Chicago, Illinois. The Federal rule controls. [Parsons v. Chicago, B. Q.R.R. Co., 300 S.W. 324; Burgher v. Wabash Ry. Co., 217 S.W. *Page 1137 854.] There can be no doubt that the furnishing of cars for an interstate shipment is governed by the Federal rule.
As Mr. Chief Justice WHITE in Chicago, R.I. P. Ry. Co. v. Hardwick Elevator Co. (decided January 6, 1913),
"As legislation concerning the delivery of cars for the carriage of interstate traffic was clearly a matter of interstate commerce regulation, even if such subject was embraced within that class of powers concerning which the State had a right to exert its authority in the absence of legislation by Congress, it must follow in consequence of the action of Congress to which we have referred that the power of the State over the subject-matter ceased to exist from the moment that Congress exerted its paramount and all-embracing authority over the subject. We say this because the elementary and long-settled doctrine is that there can be no divided authority over interstate commerce and that the regulations of Congress on that subject are supreme. It results, therefore, that in a case where from the particular nature of certain subjects the State may exert authority until Congress acts under the assumption that Congress by inaction has tacitly authorized it to do so, action by Congress destroys the possibility of such assumption, since such action, when exerted, covers the whole field and renders the State impotent to deal with a subject over which it had no inherent but only permissive power."
Therefore, we are to be governed solely by the Federal rule in the discussion of this case.
The Springfield Court of Appeals in Williams v. St. Louis-San Francisco Ry. Co.,
The case of Mo., Kans. Tex. Ry. v. Harriman,
In Davis v. Cornwell,
In Underwood v. Hines, 222 S.W. 1037 (decided June 14, 1920), it is held by this court that no verbal agreement to furnish cars in interstate shipment could be relied upon and states broadly that no special contract for unusual service could be made.
To the same effect is Blair-Baker Horse Co. v. Atchison, T. S.F. Ry. Co., 200 S.W. 109 (decided December 3, 1917), which *Page 1138 held that no requirement in a shipment contract could be waived because a waiver would work to the advantage of some and be discriminatory.
The case of Howell v. Hines,
The next case cited by respondent is Raper v. Lusk,
Ficklin v. Railroad,
Baker v. Railroad,
It follows that if the railroad cannot give special service to have cars at a certain time, it cannot be liable for a failure to notify the plaintiffs that cars are actually available. This would be a special service and would be unlawful. [Williams v. St. Louis-San Francisco Ry. Co., supra, and Underwood v. Hines, supra.]
Under this view it is not necessary to discuss the other questions raised by appellant.
The judgment is reversed and the cause remanded with directions to enter judgment for the defendant. Frank, C., concurs.