Elliott v. Chicago, M. & St. P. Ry. Co.

McCOY, P. J.

In this case plaintiff, by his complaint, alleged 'that he delivered to the Union Pacific Railway Company, at Grand Island, Neb., certain horses for transportation to Aberdeen, S. D.; that said horses were carried by said Union Pacific

Railway Company to Council Bluffs, Iowa, and there delivered to the Chicago, Milwaukee & St. Paul Railway Company, as a connecting carrier, for transportation to Aberdeen; and that, while being transported by the latter railway company, certain acts of negligence of said last-named company resulted in injury to said horses to plaintiff’s damage in the sum of $1,000. The action is ■against the connecting carrier only. To this complaint the defendant interposed a general demurrer on the grounds: (I) That it fails to state facts sufficient to constitute a cause of action in favor of plaintiff against defendant; (2) under the allegations of the complaint, if a cause of action exists it exists solely against the Union Pacific Railway Company, tire initial carrier, and no action for damages 'in the transportation of said property can be maintained against this defendant. The demurrer was overruled, and defendant appeals.

[1] The first contention of appellant is that no contractual relations existed between plaintiff and defendant; that the defendant is the agent, of the initial carrier for the purpose of carrying out the initial carrier’s contract with plaintiff; and that, as such agent, it is liably only -to its principal, the Union Pacific aRilway Com-pan, and is not liable to the plaintiff in this action. We are of the view that this contention is not tenable. When defendant accepted and undertook to carry said property from Council Bluffs to Aberdeen, it thereby, impliedly -at least, made itself subject to the provisions of said 'contract, and became liable for its, own negligent acts in relation to said property. See note 31 L. R. A. (N. S.) pp. 90, 91.

[2] It is the further contention of appellant that such complaint is. insufficient in that under its allegations the cause of action, if any, is solely against the Union Pacific Railway Company, as initial carrier, and that under the amendment to the Interstate Commerce Act', known as the Carmack Amendment (34 U. S. Statutes at Large, 586, § 20), no action can be maintained against a connecting carrier for loss or damage, even though occurring on its line. The only authority that is claimed to support appellant’s contention is the decision in the case of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and particularly that portion .thereof which reads as follows:

“One illustration would be, a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carriers, for a loss or damage incurred upon the line of the .former. The liability of such succeeding carrier in the route would be that imposed 'by this statute, and for which the first carrier might have been made liable.”

The precise question involved in the case -at bar is whether or not suit may be maintained against a succeeding or connecting carrier by a shipper where the injury is known and alleged to have occurred by reason alone of the negligent acts of the connecting carrier. We are constrained to the view that there is nothing in the Croninger decision that has or was intended to have any application whatever to the proposition involved in this case. The only question before the court in that case was whether or not the substantive law of the state or the substantive federal law governed the fixing" of. the substantive liability of the carrier, and that irrespective of whether such carrier- be initial or connecting. .The question as to whether the initial carrier only could be sued in such cases was in no manner before the court in the Croninger case, and what was said by the court in that case only referred to the question of substantive liability, and had no reference whatsoever as to whether or not 'a succeeding carrier might -or might not be sued as well as the initial carrier. Under the language •.quoted from the Croninger decision, “the (substantive) liability of such succeeding carriers” would, most certainly, be that imposed by the federal law, and not that imposed by the state enactment, and would be the same liability “for which the first (or initial) carrier might have been made liable” had suit been brought against the initial instead of the succeeding -carrier. If the succeeding carrier could -not be sued1 a-t all, then there would be no liability against the connecting carrier to be applied against the “first carrier”; 'clearly indicating, as we think, that the. court in the ■Croninger case only had in view the question of substantive liability.

[3] The substantive liability fixed by federal statute, whether the suit be against the initial or succeeding carrier, m-ay be -enforced by a state as well -as a federal court. Galveston Ry. Co. v. Wallace, 223 U. S. 481, 32 Sup. Ct. 205, 56 L. Ed. 516. The Carmack Amendment -contains the proviso:

“That nothing in this section shall deprive ‘any holder of such receipt or 'bill of lading of any remedy or right of action which he has under existing law.”

The initial and succeeding carriers, where injury occurs to a shipment of goods, may all be tort-feasors, any one or all of which may be sued for such injury. The connecting carrier, whether intermediate -or terminal, was not liable for damages not occurring on its own line, but was alone liable for its own independent negligent acts which did occur on • its own line. See note 31 R. R. A. (N. S.) pp. 90, 92, and 94. These were the rules as to the remedies and rights of action of the shipper both in the federal and state courts existing .prior to and at the time of the enactment of the Carmack Amendment. The Carmack Amendment merely places the shipper in a position where he may be able to recover for injured property and relive himself, oftenr times, from the task .of locating the active tort-feasor. But if the shipper knows which one among a number of carriers caused the injury, he may sue that one alone. Galveston Ry. Co. v. Piper, 52 Tex. Civ. App. 568, 115 S. W. 107; Otrich v. Ry. Co., 154 Mo. App. 420, 134 S. W. 665; McMillan v. C., R. I. & Pac. Ry. and G. N. Ry., 147 Iowa, 596, 124 N. W. 1069; Tradewell v. C. & N. W. Ry., 150 Wis. 259, 136 N. W. 794; Storm Lale Tub & Tank F. v. M. & St. R. Ry. (D. C.) 209 Fed. 895; Uber v. C., M. & St. P. Ry., 151 Wis. 431; 138 N. W. 57. There is nothing in the Croninger decision that conflicts with or overrules these decisions of tire state courts. It is- certain ¡that both the state and federal -court do consider like cases and render judgment against connecting carriers since the enactment of -the 'Carmack Amendment, and this as late -as -the month of June, 1914. M., K. & T. Ry. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377. If the -connecting carrier -cannot be sued .at all, it would produce in some instances a most unconscionable and unreasonable state of affairs. A shipment of merchandise might be started -over -the line of an initial carrier in the state of Massachusetts destined to some shipper at -some point in this state, and some injury occur in this state at or near the destination point. All the -evidence and all the witnesses might he situated in this state. It would amount to •practical denial of justice to compel the shipper, or the connecting carrier, to take -the evidence and the witnesses all tíre way to Massachusetts and1 wait around in the courts there until the cause might be tried. Again, the initial' carrier might be a bankrupt against whom a recovery would be worthless. The result of holding that only the initial carrier can be sued is loaded with some very drastic and deplorable results. We are of the opinion that the legislative mind had these results in view when it attached to the Carmack Amendment the broad and comprehensive proviso:

“That nothing in this section shall deprive any holder of such * * * bill of lading of any remedy or right of action which he •has under existing law.”

[4] .Under the then existing law the shipper, who- held such bill of lading, had a- remedy or right of action, both in the federal and state courts, against the succeeding or connecting carrier for its own negligent acts. The abstract or substantive law as to liability, whether applied to an initial or succeeding carrier, has been made exclusive^ goverened by the federal law. The abstract law of liability is one -thing, and the shipper’s remedy or right of action is another. By this concluding proviso of the amendment the remedy and right of action thereunder are made concurrent with the remedy and right of action under the general law then existing. Any other construction will wholly destroy and nullify this proviso. But for the existence of this proviso it might, with some reason, be contended that the shipper’s remedy and right of action was also exclusively controlled, by the interstate commerce act as amended; but this ¡proviso ¡is as- much a part of the interstate commerce act as any other part thereof. By this proviso the distinction between what i-s purely abstract liability, -or substantive cause of action, and what is purely remedy and right of action, is -clearly recognized. Right of action- and substantive liability, or cause of action, may erroneously be confounded. The meaning of the expression “right of action” as used- in this -proviso must be -determined in the light of the company in which it is found, viz., “remedy or right -of action.” -The maxim, “Noscitur a sociis,” is applicable. 36 Cyc. 1118. “Right of action” is one thing; “cause of action” is another. -Right of action pertains fo remedy and relief through judicial procedure. Cause of action is based on the substantive law of legal liability. 1 Am. & Eng. Ency. of Raw & Prac. 1038; 1 R. C. R. 313; Pomeroy’s Remedies, §§ 346-353; 1 Cyc. 642.

The opinion in the Croninger case' relates solely to the substantive law of liability, or cause of action. The concluding proviso of the Carmack Amendment relates to remedy and right of action as a matter of judicial procedure.

The order appealed from is affirmed.