Louisville & N. R. R. v. S. D. Chestnut & Bro.

Opinion op the court by JUDGE HOBSON Reversing. Appellees, S. D. Chestnut & Bro., shipped a car load of turkeys froan Trenton, Ky., to Chicago, Ill., on December 11, 1898. The car was carried by the Louisville & Nashville Railroad Company to Evansville, Ind., and there delivered to the Evansville & Terre Haute Railroad Company, which took it to Terre Haute, and there delivered it to the Chicago & Eastern Illinois Railroad Company, which transported át to Chicago all right, but failed to take it from its yard to the unloading track at Chicago ; and while — 47 — tba car was so delayed it turned very cold, and a number of tbe turkeys were frozen. The car reached Chicago about 7 o’clock in the morning, and should, in the ordinary course of business, have been unloaded in a few hours; but, by reason of tba delay, the unloading of it was not finished until some time the next day. The proof by the defendants tended to show that the turkeys were not in good condition, and the loss on .them was due in part to ’this fact, -and in part to the delay of the consignee in unloading the ear after it was placed on the proper track. The court peremptorily instructed the jury to find for the defendant, the Evansville & Terre Haute Railroad Company, and submitted the case, to the jury as to the Louisville & Nashville Railroad Company and the Chicago & Eastern Illinois Railroad Company. There was no evidence showing negligence On the part of the Louisville & Nashville Company, and therefore tbe only question in the case is whether it is liable under the contract, as a through carrier, for the negligence of its connecting line. Ere written contract, so far as is material, is in these, words: “Received by the Louisville & Nashville Railroad Company ithe following described live stock to be transported in accordance with the terms and conditions of the contract entered into below: “Tariff rate on this shipment from Trenton to Evansville is $62.00 per car. — 48 — “Contract for Transportation of Live Stock. “Trenton, Ky., Station, Dec. 11, 1898. “This agreement made between .the Louisville & Nashville Railroad Company and its connecting lines of the first part and S. D. Chestnut & Bro. of the second part Witnesseth, That, whereas the said Louisville & Nashville Railroad Company and its connecting lines transport live stock only as per above tariff; but in consideration that the said party of the first part will transport for the said party of the second part one car of poultry from Trenton, Kentucky, to Evansville, Indiana, station at the rate of thirty-one dollars per car and a free passage to the owner or his agent on the train with the animals (if .shipped in car load quantities) , the same being a special rate lower than the regular rate mentioned in the said tariff, the said party of the second part hereby releases .said party of the first from all liability in the transportation of said animals, except as hereinafter agreed, and agrees that such liability shall be only that of a private carrier for hire; and it is further distinctly understood by the parties hereto that all liability of said Louisville & Nashville Railroad Company as carrier of said animals shall cease at its destined station if on said company’s railroad, or if destined to a point beyond said company’s railroad, then at said company’s station at its terminus, when ready to be delivered to the owner, consignee, or carrier, whose line may constitute a part of the route to destination. . . . “And it is further agreed that when necessary for said animals to be transported over the line or lines of any other carrier or carriers to the point of destination, delivery of the said animals may be made to such other, carrier or carriers-for transportation, upon such terms and conditions as the carrier may be willing to accept: provided that the terms and — 49 — conditions of this bill of lading shall inure to such carrier or carriers, unless they shall otherwise stipulate; but in no event shall one carrier be liable for the negligence of another.” The proof shows that appellees were charged $22 for the poultry car Tacoma, $31 for transporting it from Trenton to Evansville, and $54.40 as the freight from Evansville to Chicago; making, in all, $107.40, which was paid by the consignees in Chicago. It is insisted for appellees that the' written contract is an undertaking by the Louisville & Nashville Railroad and its connecting lines to carry the car Tacoma from Trenton to Chicago; that they are all parties of the first part, who received the car to be carried to its destination, and are all bound alike.by the stipulations of the contract to transport the car from Trenton to Evansville, and from Evansville to its destination. It is also urged that the limitations of the contract are not limitations on the obligation of any of the lines, but only an attempt to limit their liability by reason of the obligation; and the case of Ireland v. Mobile & Ohio Railroad Company, 105 Ky., 400, 20 R., 1586, 49 S. W., 188, 453, is relied on. But it will be observed that while the writing is a receipt by the Louisville & Nashville .Railroad Company for the poultry car Tacoma, consigned to Chicago, 111., it is stipulated that the party of the first part will transport the car from Trenton, Ky., to Evansville, Ind., and that all liability on the parit of the Louisville & Nashville Railroad Company for the car shall cease at its terminus, When ready to be delivered to the connecting line; and it is also agreed that the oar may be transferred, to such connecting lines as are necessary to reach its point of destination. Taking the contract as a whole, we think it means that the Louis — 50 — ville & Nashville Railroad Company is to transport the car to its terminus, and there deliver it to the connecting line, and to be no further responsible for it. The bill of lading in the case of the Mobile & Ohio Railroad Company read very differently. There the Mobile & Ohio Railroad Company was the only contracting party, and the court reached the conclusion that the covenants of the paper could only refer to it. A bill of lading on substantially the same form as that above quoted was before this court in L. & N. Railroad v. Tarter, 19 R., 229, 39 S. W., 698, and it was held that the initial carrier was not liable beyond its line. The court said: “The general rule is that a carrier is not liable beyond its own line, unless by contract to that effect, express or implied. Elliott on Railroads, sec. 1433; Bryan v. Memphis, etc., Railroad, 11 Bush, 597. It is held in most of the courts that the mere acceptance of goods directed to a point off the carrier’s line is not a sufficient basis for the implication of a contract for extraterminal liability; but, whether so or not, it has never been held thiat such liability existed in the face of a contract to the contrary. This is not a case of attempted limitation of liability for negligence; hence the cases, cited by appellee’s counsel do not apply.” The same rule was followed in L. &. N. Railroad v. Cooper, 19 R., 1152, 42 S. W., 1134, on the same form of bill of lading. The soundness of these rulings was recognized in the Ireland case, where the court said: “It is urged that the clause is an attempted limitation of the carrier’s common-law liability, and is therefore void. We do not think so. At the common law, without a contract to the contrary, there was no liability beyond the carrier’s own line.” 105 Ky., 405, 20 R., 1586, 49 S. W., 188, 453. This was recently approved in P., C., C. & St. L. R. R. Co., v. Viers, etc., 113 Ky., 526, 24 R., 356, 68 S. W., 469. We therefore conclude that, under the contract referred to, the — 51 — Louisville & Nashville Railroad Company was not responsible beyond its own line. As to the appellant, the Chicago & Eastern Illinois Railroad Company, a different question is presented. It had no officer in the State, and the process for it was served on the president of the Louisville & Nashville Railroad Company, on the idea that the Louisville & Nashville Railroad Company was its agent in the "State in the making of the contract sued on, and therefore the process might be properly served on such agent. In Nashville, etc., Railroad Co. v. Carrico, 95 Ky., 489, 16 R., 66, 26 S. W., 177, under a bill of lading similar to that before us, it was held that as the contract was made in Marion county by the Louisville & Nashville Railroad Company, acting as agent for the appellant, the Nashville, etc., Railroad Company, the contract must, within the meaning of section. 73 of the Civil Code of Practice, be regarded ás made there by appellant itself, and as, by that section, an action against a common carrier upon a contract .to carry property may be brought in the county in which the contract is made, the Marion circuit court properly had jurisdiction of the action. .This case was followed in P., C., C. & St. L. v. Viers, etc., supra; but in both these casés the summons was served on an agent of the defendant in this State. By subsections 3, 4, section 51, of the Civil Code of Practice, it is provided that if the defendant operate a railroad the summons “may be served upon the defendant’s passenger or freight agent stationed at or nearest to county seat of the county in which the action is brought.”. The words “passenger or freight agent stationed at or nearest to the county seat of the county” must refer to a person who is in the service of the defendant, and is stationed by it ,at some point. The Louisville & Nashville Railroad Company, although it may — 52 — have acted as the agent of the defendant in' making the contract, is not such an agent as the statute contemplates; and therefore the service of process upon' it was invalid, and Should have been quashed. But on the return of the case to the circuit court no further process will be necessary, as the appeal enters the defendant’s appearance to the action. In 3 Cyc., 510, the rule on this subject is thus stated: “Taking an appeal or suing out of a writ of error from an inferior court to an intermediate appellate court, which tries the same de novo, constitutes a general appearance in the intermediate' court, and confers jurisdiction of the person on that court, whether the court from which the appeal was taken had acquired jurisdiction of the person or not. If the appeal is to a reviewing court, it is a general appearance, in the sense that on reversal and remand to the trial court the defendant is in court for the purpose of further proceedings without any further steps to bring him into court, even though the judgment was reversed on the ground that the trial court had not acquired jurisdiction of the person of defendant.” This rule was laid down in the year 1809 by this court in Grace v. Taylor, 4 Ky., 430. It was followed in 1815 in Graves v. Hughes, 7 Ky., 84, and Wharton v. Clay, 7 Ky., 167; also in 1826 in Hockaday, etc., v. Commonwealth and Adkins, 20 Ky., 12. In a number of subsequent cases the rule is adhered to. Bradford v. Gillaspie, 38 Ky., 67; Chesapeake, Ohio & Southwest R. R. Co. v. Heath’s Adm’r, 87 Ky., 651, 10 R., 646, 9 S. W., 832; Thompson v. Moore, 91 Ky., 80, 12 R., 664, 15 S. W., 6, 358; Lillard v. Brannin, 91 Ky., 511, 13 R., 74, 16 S. W., 349. After its objection to the process was overruled, the defendant filed answer to the merits, and there was a trial, and judgment on the whole case. From this judgment the — 53 — appeal before us is prosecuted. It will therefore be before the court on the merits when the action is returned to the lower court. Judgment reversed, and cause remanded for further proceedings consistent herewith.