Kansas City Southern Railway Co. v. Mixon-McClicntock Co.

Kirby, J., (after stating the facts). It is insisted, first, that the appellees have no authority or right to bring this suit and that the Mixon-McClintock Company was not a proper party, having no interest in the result thereof. The answer denied the corporate existence of the Mixon-McCIintock Company and also of the road improvement district and there was introduced in evidence the certificate of the incorporation of the Mixon-McClintoek Company, issued by the Secretary of State upon the filing of its articles of incorporation in that office, as required by law, and also the special act of the Legislature, authorizing the organization of the road improvement district and the statement of one of its commissioners that after they had issued the bonds and borrowed the money it became necessary to buy some mules to carry on the work and that the mules were purchased by the Mixon-McCIintock Company for it. The certificate of incorporation is in proper form and is expressly made admissible in all the courts of the State, and is prima facie evidence of the due incorporation of the company to which it is issued. Section 845, Kirby’s Digest. The Boad Improvement District is expressly authorized by the statute under which it was created to sue and be sued, and the testimony, showing that it had been organized, issued bonds and borrowed money, the presumption should be indulged that it was properly organized, even if appellant were in a position to raise tfie question. The appellant received the mules for shipment in Kansas City, and issued its contract and bill of lading therefor, binding itself to deliver them to the Mixon-McCIintock Company, at Marianna, Arkansas, and under such circumstances it would not be heard to complain that the consignee to whom it expressly agreed to deliver the stock was without authority to bring suit for the damage thereto. St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 179, 141 S. W. 939; Cantwell v. Pacific Express Co., 58 Ark. 487. It is true, the contract of shipment in this case was made with the Cottingham Bros., but the railroad’s contract to deliver was to the Mixon-McCIintock Company, and it will not be heard to deny the existence of the corporation bringing snit upon sucb contract for tbe failure of its performance by tbe carrier. 10 Cyc. 245. Tbe testimony shows that each and both companies were authorized to sue, and if they were not properly joined it was no concern of appellant’s, since it can not be compelled to pay the judgment but once, and whichever had the right to recover is bound thereby. The testimony shows that the mules were delivered to appellant carrier in good condition and that their market value was $250 each. It also shows in detail the injuries to each animal upon arrival at the point of destination and the witness’s statement of the amount of damages of $1,700 to all of them because of the injuries. It is also undisputed that one of the mules died from the injuries received in transportation and that another was sold for only $150 because of such injuries. The shipment was an interstate one and the initial carrier receiving the property for transportation was required to issue its bill of lading therefor and it became liable to the lawful holder of such bill of lading for any loss, damage or injury to such property, caused by it or any connecting carrier to which it was delivered and over whose line it passed in reaching its destination. According to the Carmack amendment to the Interstate Commerce Act, 20th section, of June 29, 1906, 34 U. S. Statutes at Large, 584, the common law liability of the carrier for damages for injury to freight in transportation, was defined by this court in St. L., I. M. & S. R. R. Co. v. Pape, 100 Ark. 279, where it was held that the carrier is liable for all injuries and losses to the property shipped in transportation, except certain ones, arising from the act of God, the public enemy, or of public authority of the shipper, or from the inherent nature of the property shipped and in cases where it claims exemption from liability on account of either of these exceptions that the burden of proof rests upon it to show that the injury resulted therefrom. See also Adams Express Co. v. Croninger, 226 U. S. 491. The property having been received at Kansas City in good condition and delivered at the point of destination in an injured and damaged condition and appellant having failed to show by a preponderance of the testimony, as the jury found, that the damage and injury were caused by the inherent viciousness of the animals themselves, it was bound to the payment of the damages arising from the injury to the mules in transportation, without regard to whether the injury occurred upon the line of the receiving carrier or not. The majority of the court are of the opinion that the abstract of the testimony in the brief is sufficient to warrant the court in considering the clause in the bill of lading limiting the liability of the carrier to $100 in case of loss or injury, for each of the animals shipped, but the consideration of it must be limited to the clause for the loss of the mule that died only, since no question was made in the trial court upon it as to the damage to any of the others. The' limited liability bill of lading shows that the freight charge made was based upon a valuation of not to exceed $100 for each animal and although our decisions before the construction of such a clause, after the passage of the Carmack amendment to the Hepburn Act, by the Supreme Court of the United States, held it invalid, as an attempt to restrict and limit the liability of the carrier in case of an injury caused by it to live stock in transportation and prohibited by the terms of said amendment to the Hepburn Act, we now hold in conformity with the opinion of the Supreme Court of the United States construing it (Adams Express Co. v. Croninger, supra), that the provisions of said act forbidding exemptions from liability imposed by it are not violated by the contract expressly limiting the amount of recovery to $100 for the loss or injury to each animal shipped, in accordance with the terms of the contract for shipment. The court erred therefore in not giving appellant’s requested instruction No. 3. It is not such an error, however, that can not be corrected by remittitur, since from the undisputed testimony the jury could not have found that the damage to the animal that died was more than $250, and appellant is liable for $100 of that amount, and if appellees will enter a remittitur within fifteen days for $150, the judgment will be affirmed, otherwise it will be reversed and the cause remanded for a new trial.