Kansas Pacific Rly. Co. v. Nichols, Kennedy & Co.

9 Kan. 235

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The'opinion of the court was delivered by

Valentine, J.:

1. Ammendments striking out names ofut pames. This action was commenced in the district court by David Nichols, Michael Kennedy, Henry Parvin, and Harland Palmer, as plaintiffs, against the Kansas Pacific Bailway Company. It was alleged in the petition that said plaintiffs were partners, doing business under the firm-name of Nichols, Kennedy & Co. During the trial evidence was introduced tending to show that two of the plaintiffs, Henry Parvin and Harland Palmer, were not members of the firm at the time this action was commenced, and thereupon the court on motion of the plaintiffs struck their names from the proceedings, and allowed the case to proceed in favor of the other two only. We see no error in this. (Silvers v. Foster, ante, p. 56.) Our code of civil procedure provides for just such eases, (§ 139, p. 655, § 396, p. 704,) leaving however a great deal of discretion to be exercised by the court trying the cause.

2. Defect question raised; warm. II. It is also claimed that there was a defect of parties plaintiff. We do not think however that the record shows any such defect. The only thing that tends to show it is a small portion of the testimony of the plaintiff Nichols, which reads as follows: “ Bryson had an interest in shipping these cattle.” We suppose further comment upon this question is unnecessary. But if there was a defect of parties plaintiff, as no objection was taken thereto, either by demurrer or answer, it must be deemed that the defendant below waived the same. Civil Code, § 91.

3. Railway companies are pomÍnon camer». III. The main question in this case is, whether the railway company, when it took the cattle of the plaintiffs below for the purpose of transporting them over its road, assumed the responsibilities of a common carrier or not. We think it did. This question has already been decided in this court in the case of the K. P. Co. v. Reynolds, 8 Kas., 623. In the case of Kimball v. The Rutland and Burlington Rld. Co., 26 Vt., 247, 254, et seq., the court decided that “A railway company that transport cattle and live stock for hire, for such persons as choose to employ them, thereby assume and take upon themselves the relation of common carriers, and with the relation the duties and obligations which grow out of it * and they are none the less common carriers from the fact that the transportation of cattle is not their principal business or employment.” See also Wells v. Pittsburg, Ft. Wayne & C. Rld. Co., 10 Ohio St., 65. In the case of the Great Western Rly. Co. v. Hawkins, 18 Mich., 427, 433, the supreme court of Michigan use the following language: “The company in this case must be regarded as common carriers, and liable as such,' •except so far' as that liability was qualified by the special contract.” The special contract just mentioned was a contract to transport nineteen horses from Paris, Canada, to Detroit, Michigan, and there is nothing in the contract or in the report •of the case that tends to show that the company held themselves out as common carriers of live stock, or that they anywhere agreed or admitted that they were such carriers, and they carried these horses under a special contract. See also the authorities cited in the brief of defendants in error, and 2 Redf. on Rlys., 4th ed., 144, note 2, and cases there cited; Wilson v. Hamilton, 4 Ohio St., 738; Sager v. Portsmouth Rld. Co., 31 Maine, 228; Clarke v. Rochester & Syracuse Rld. Co., 14 N. Y., 570; N. M. Rld. Co. v. Akers, 4 Kas., 453; Keeney v. The Grand Trunk Rly. Co., 59 Barb.; Wells v. Pitts., Ft. W. & C. Rld. Co., 10 Ohio St., 65. It is claimed that a different doctrine has recently been held in Michigan: Mich. Southern & Northern Ind. Rld. Co. v. McDonough, 21 Mich., 165. This is certainly true with respect to the railroad then under consideration by the court; but whether it is true with regard to all railroads in the state of Michigan is not so certain. Seepages 189,198 andl99ofthe opinion, and the comments of the court on the provisions of the charter of the Mich. Southern Rid. Co., and the act consolidating it Avith the Northern Ind. Rid. Co. But if this decision does apply to all the railroads of Michigan as well as to the Michigan Southern & Northern Ind. Rid. Co., under its peculiar charter, does it in any manner indicate Avhat the laAV is in Kansas? We think not, or but very little at most. In Michigan, since April 1870 railroads have not been public purposes, or public uses, in the sense that they are such in the other states of the Union. In that state they are purely and strictly private purposes or uses: People v. Salem, 20 Mich., 452, 475, 480, 485. The supreme court of that state say that, “They (railroad companies) are public agents in the same sense that the proprietors of many other kinds of private business are, and not in any other or different sense.” “ Our policy in that respect,” say the court, “has changed; railroads are no longer public works, but are private property.” Railroads are private, according to that decision, in the same sense that the different kinds of business of hackmen, draymen, proprietors of stage coaches, merchants, newspaper proprietors, physicians, manufacturers, mechanics, hotel-keepers, millers, etc., are private. Railroads in Michigan seem from that decision to be such private corporations as are described in the case of Leavenworth Co. v. Miller, 1 Kas., 524, 535. If they are such private corporations as there described, of course they have a right to be common carriers of just such property as they choose, no more and no less. This is not so in Kansas. The railroads of Kansas are organized upon a different basis. In Kansas they are endowed with a kind of quasi public as well as private character. In Kansas they are so far public that the sovereign power of eminent domain may be exercised for their benefit, and they are so far public, that other public aid may be extended to them. It is believed that no railroad has yet been built in Kansas that has not been aided both by the exercise of the power of eminent domain, and by other public aid, such as lands and county or municipal bonds. Railroads are public purposes in no sense except in the sense of being common carriers of freight and passengers. It is true that there are incidental public benefits arising from the creation and operation of railroads, such as the increase in the value of property along their routes, the increase of the public revenues, etc., but these are only incidental benefits, and are not at all what make railroads public purposes. And this public character of railroads is stamped upon them at their very creation. It is stamped upon them by the sovereign power where it authorizes their coming into existence; for otherwise they could receive no public aid until the roads .should be constructed and in operation, and until the roads should become public purposes by virtue of becoming common carriers of freight or passengers. And if they were created absolutely private corporations they could become common carriers only by holding themselves out as such, and by actually carrying freight or passengers. We suppose it will not be contended that any kind of public aid could be extended to a purely private corporation. If a i-ailroad company is created as a private carrier, and not as a public or common carrier, we suppose that no'one will contend that the sovereign power of eminent domain could be exercised for its benefit in its construction, or that any public aid of any kind whatever could be extended to it. That railroads are created common carriers of some kind, we believe is the universal doctrine of all the courts. The main question is always, whether they are common carriers of the particular thing then under consideration. The question in this case is, whether they are common carriers of cattle. So far as our statutes are concerned no distinction is made between the carrying of cattle and that of'any other kind of property. Under our statutes a railroad may as well be a common carrier of cattle as of goods, wares, and merchandise, or of any other kind of property. Now as no distinction has been made by statute between the carrying of the different kinds of property, we would infer that railroads were created for the purpose of being common carriers of all kinds of property which the wants or need of the public require to bo carried, and which can be carried by railroads; and particularly wo would infer that railroads were created for the purpose of being common carriers of cattle. As Kansas, and all the surrounding states and territories, with their boundless prairies and nutritious grasses, are destined to be, great stock-growing countries, it can scarcely bo supposed that the legislature in providing common carriers for the property of the public should have omitted' to provide for one of’the most important kinds of property, a vast source of unbounded wealth. We have no navigable streams within the boundaries of Kansas upon which to transport cattle, and hence they must be transported by railroad, if transported by any means except by driving them on foot.

It is claimed however that “the transportation of cattle and live stock by common carriers by land was unknown to the common law.” Suppose it was; what does that prove? The transportation of thousands of other kinds of property, either by land or water, was unknown to the common law, and yet such kinds of property are now carried by common carriers, and by railroads, every day. We get our common law from England. It was brought over by our ancestors at the earliest settlement of this country. It dates back to the fourth year of the reign of James the First, or 1607, when the first English settlement was founded in this country at Jamestown, Virginia. The body of the laws of England as they then existed now constitute our common law. It is so fixed by statute in this state, (Comp. Laws, 678; Gen. Stat., 1127, § 3,) and is generally so fixed by statute or by judicial decisions in the other states. The reason why cattle and live stock were not transported by land By common carriers at common law, was because no common carrier at the time our common law was formed had any convenient means for such transportation. Among the other kinds of property not transported by common carriers, either by land or water, at the time our common law was formed are the following: reapers, mowers, wheat drills, corn planters, cultivators, threshing machines, corn shelters, gypsum, guano, Indian corn, potatoes, tobacco, stoves, steam engines, sewing machines, washing machifies, pianos, reed organs, fire and burglar-proof safes, etc.; and yet no one would now contend that railroads are not common carriers of these kinds of articles. At common law the character of the carrier was never determined by the kind of property that he carried. He might have been a private or special carrier of goods, wares, and merchandise, or of any other kind of property, or he might have been a public or common carrier of cattle, live stock, or any other kind of property, just as he chose. All personal property was subject to be carried by a common carrier, and no personal property was exempt. Whether a person was a common carrier depended wholly upon whether ho hold himself out to the world as such, and not upon the kind of property that he carried. A common carrier was such as undertook, “generally, and not as a casual occupation, and for all people indifferently, to convey goods and deliver them at a place appointed, for hire, as a business, and with or without a special agreement as to price.” 2 Kent’s Com., 598. And he could hold himself out as a common carrier by engaging in the business generally, or by announcing or proclaiming it to the world by the issuing of cards, circulars, advertisements, etc., or by any other means that would let the public know that he intended to be a common or general carrier for the public. Railroads hold themselves out as common carriers by an act irrevocable on their part in their very creation and organization. The very nature of their business is such that by engaging in it or offering to engage in it they hold themselves out as common carriers. But let us return to the point more especially under consideration. /At common law no person was a common carrier of any article unless he chose to be, and unless he held himself out as such; and he was a common carrier of just such articles as he chose to be, and no others. If he held himself out as a common carrier of silks and laces, the common law would not compel him to be a common carrier of agricultural implements such as plows, harrows, etc.; if he held himself out as a common carrier of confectionery and spices, the common law would not compel him to be a common carrier of bacon, lard, and molasses. Funnel v. Pettijohn, 2 Harrington (Del.,) 48. And it seems to us clear beyond all doubt, that if any person had in England prior to the year 1607 held himself out as a common carrier of cattle and live stock by land, the common law would have x made him such. If so, where is the valid distinction that is attempted to be made between the carrying of live stock and the carrying of any other kind of personal property ? The common law never declared that certain kinds of property only could be carried by common carriers, but it permitted all kinds of personal property to be so carried. At common law any person could be a common carrier of all kinds, or any kind, and of just such kinds of personal property as he chose, no more, nor less. Of course, it is well known that at the time when our common law had its origin, that is, prior to the year 1607, railroads had no existence. But when they came into existence it must be admitted that they would be governed by the same rules so far as applicable which govern other carriers of property. ^ Therefore it must be admitted that railroads might be created for the purpose of carrying one kind of pfdpbfty only, or for carrying many kinds, or for carrying all kinds of property which can be carried by railroads, including cattle, live stock, etc. In this state it must be presumed that they were created for the purpose of carrying all kinds of personal property. It can hardly be supposed that they were created simply for the purpose of being carriers of such articles only as were carried by common carriers under the common law prior to the year 1607; for if such were the case they would be carriers of but very few of the innumerable articles that are now actually carried by railroad companies. And it can hardly be supposed that they were created for the mere purpose of taking the place of pack-horses, or clumsy wagons, often drawn by oxen, or such other primitive means of carriage and transportation as were used in England prior to that year. Railroads are undoubtedly created for the purpose of carrying all kinds of property which the common law would have permitted to be carried by common carriers in any mode, either by land or water, which probably includes all kinds of personal property. Our decision then upon this question is, that whenever a railroad company receive cattle or live stock to be transported over their road from one place to another such company assume all the responsibilities of a common carrier/ except so far as such responsibilities may be modified by special contract.

4. Damages interest of BSSSFoi t»e shown. TV. It is claimed that the court below erred in instructing the jury with regard to damages. The evidence showed that the firm of Nichols, Kennedy & Co. shipped 198 head of cat-tie, and that the firm of Nichols & Palmer shipped at the same time and on the same tram ninety-seven head of cattle. At Kansas City these cattle were all turned out together, and allowed to go at large. Many of them strayed away. Twenty-one head of them were never recovered, but were totally lost; and it cost $210 to recapture the others. There was no evidence tending to show whether these twenty-one head that were lost belonged to one firm or the other, or how many of them belonged to one firm, or how many to the other. The plaintiffs in error, in their brief, “guess” they all belonged to the firm of Nichols & Palmer. The defendants in error (plaintiffs below) guess in their brief that they all belonged to Nichols, Kennedy & Co. The jury probably guessed, under the instructions of the court, that about two-thirds of them belonged to the firm of Nichols, Kennedy & Co., and that the other third belonged to the firm of Nichols & Palmer. Neither was there any .evidence tending to show whose cattle strayed, so as to require .cost to recover them back, or how much it cost to recapture the cattle of one firm, or how much it cost to recapture the ■cattle of the other firm. Under the charge of the court the jury probably assessed two-thirds of the cost against the railway company as belonging to the firm of Nichols, Kennedy A Co. If the evidence upon these two points had been clear and positive as to how many cattle, if any, Nichols, Kennedy ■& Co. lost, and as to how much, if anything, it cost this firm to recover the others back, the charge of the court would probably not have misled the jury, and would then not have been so erroneous as to require a reversal of the judgment, for the charge was not glaringly erroneous. The charge was more in its nature permissive than it was mandatory. But as there was no evidence upon these points, as there was nothing from which the jury could determine whether the whole twenty-one head of cattle that Avere lost, or some less number, or none at all, belonged to Nichols, Kennedy & Co., and .as there Avas nothing from Avhich the jury could determine Avhether the Avhole of- said cost of recapturing said other cattle, to wit, $210, or some less sum, or nothing, fell upon Nichols, Kennedy & Co., any suggestion from the court upon these points, however slight, if it indicated a number or •amount, might, and probably would, mislead the jury. As to liow much the jury assessed as damages for these two items-we cannot tell. It may have been for the whole twenty-one head of cattle, and the whole $210, or for a much less amount; we suppose about two-thirds. But whatever may have been the amount, there is nothing that we know of that would prevent the other firm of Nichols & Palmer from suing and recovering from the railroad company for the whole twenty-one head of cattle that were lost, provided they belonged to that firm, and for the whole of the $210 expended in recovering the other cattle, provided it was expended in recovering the cattle belonging to that firm. The objectionable instructions are as follows:

“ In relation to the question of damages in this case it-becomes necessary for you to determine the number of cattle owned by Nichols, Kennedy & Co.; and if you shall find that they owned exactly two-thirds of the number charged in the complaint, and that the whole number mentioned, 295-head, were put together in the yard and escaped together, then, in that case it may be competent for the jury to say that the costs of recovering these cattle, if it was $210 or any other sum, should be charged joro rata according as the whole-number of cattle belonging to Nichols, Kennedy & Co. corresponded with the whole number herded together.” “If there is any evidence before you of these cattle at Arlington or any other point where they were shipped, to the effect that Nichols, Kennedy & Co. shared with Nichols & Palmer the loss of' 21 head equally in the same ratio with the number of cattle that each partnership actually owned, then you can probably arrive at the result by taking the pro rata.”

There was no evidence that the two firms at Arlington or elsewhere shared in the loss of these 21 head of cattle or any other cattle, pro rata, or in any other manner whatever.

5. practice; exceptions. V. A general exception to a whole charge is of course insufficient if any portion of the charge is correct; but where-the record of the exception reads as follows, to wit: “ To the giving of which instructions and to each and' every portion thereof, (and to the refusal by the-court to give the instructions so as aforesaid asked by the defendant,) said defendant by its counsel then and there duly excepted,” the supreme court will presume that exceptions were drily taken to each and every jtortiou of the charge separately. Such has been the uniform practice of this court. The court below also erred in refusing to grant the motion for a new trial. The judgment is reversed, and cause re.manded for a new trial.

All the Justices concurring.