this state by citizens of this state, and that that privilege shall not be incident to identical contracts of employment when entered into in this state by citizens of other states of our Union, the enactment is clearly in contravention of section 2, cl. 1, art. 4, of the federal Constitution." 96

SECTION 5.-CARRIERS

MERRITT CREAMERY CO. v. ATCHISON, T. &
S. F. R. CO.

(Kansas City Court of Appeals, 1908. 128 Mo. App. 420, 107 S. W. 462.)

JOHNSON, J. This suit was brought by a shipper against a common carrier to recover the value of a shipment of goods lost in transit. A jury being waived by agreement of parties, the court found in favor of defendant on the pleadings and admitted facts, and plaintiff brought the case here by appeal.

The cause of action pleaded in the petition is "that on or about the 26th day of May, 1903, the plaintiff delivered to the defendant for transportation from Great Bend, Kan., to Boston, Mass., and defendant accepted and undertook to transport 25 tubs of butter containing 50 pounds each, 25 tubs of butter containing 30 pounds each, and 26 tubs of butter containing 20 pounds each, consigned to Lamson & Co., Boston, all of which belonged to the plaintiff; that the butter was delivered to plaintiff for shipment in car M. D. T. 9043; that it thereupon became and was the duty of defendant as a common carrier to safely transport and deliver said butter and all of it to consignee at Boston, Mass., yet said defendant, wrongfully neglecting and refusing to perform its duty in that behalf, did fail, neglect, and refuse to so transport and deliver said butter or any part thereof;

96 See, in general, Angell, Recovery under Workmen's Compensation Acts for Injury Abroad, 31 Harv. Law Rev. 619 (1918); also notes, 22 Col. Law Rev. 263 (1922); 9 Calif. Law Rev. 230 (1921); 7 Iowa Law Bulletin, 166 (1922); 21 Mich. Law Rev. 449 (1923); 27 Yale Law Journal 113 (1917); 30 Yale Law Journal, 71 (1920); 2 Wis. Law Rev. 237 (1923).

CONTINENTAL LAW. The Workmen's Compensation Act of France has been held to apply to injuries received outside of France. Cass. May 8, 1907 (3 Darras, 539); App. Rennes, Dec. 22, 1902 (7 Darras, 134). In favor of the territorial theory, App. Douai, April 4, 1905 (1 Darras, 137).

Cass.

The Italian act has been applied to injuries received outside of Italy. Naples, March 24, 1908 (37 Clunet, 669); App. Florence, Oct. 28, 1908 (37 Clunet, 667); 4 Riv. di Dir. Int. 72, and note by Anzilotti. It is held to apply at the same time to injuries received in Italy where the contract of employment was made in another state. Trib. Civ. Sarzana, Dec. 31, 1901 (Giurispr. It. 1902, I, 2, 57).

that said butter was of the value of $529, and that plaintiff has been damaged by said failure to so transport and deliver said butter in the sum of $529." In the answer, defendant admitted that as a common carrier it received the butter from plaintiff for transportation to the consignee at Boston, and that it failed to make delivery. Two defenses are interposed: First. "That, when the cars in which said butter was being carried arrived at Argentine, in the state of Kansas, the same were overtaken by an extraordinary and unprecedented flood of water, wholly beyond the control of this defendant, which inundated and overspread the entire surrounding country, including the tracks and yards of this defendant, and that flood, which was an act of God, entirely destroyed said consignment of butter on May 31, 1903." Second. A statute of Kansas is pleaded which provides that an action of this character shall be barred in three years after the cause of action has accrued, and it is alleged, in substance, that this statute should be applied to defeat a recovery by plaintiff, since the present suit was not brought until after three years had elapsed from the loss of the property. The following admissions were made by the parties at the trial: "That ever since 1901 there was in full force and effect in the state of Kansas section 4446 of the General Statutes of Kansas, as set out in defendant's amended answer; * that the shipments referred to in the plaintiff's petition were delivered to the defendant by the plaintiff at Great Bend, Kan., for shipment to Boston in May, 1903; that said defendant carried said consignments over its road from Great Bend, Kan., to Olathe, Kan., and at said point, in order to avoid the high waters on its road, detoured said consignments and transported them over the 'Frisco Line' to Kansas City, Mo., and from Kansas City, Mo., into its yards on its own line at Argentine, Kan., which was the destination of the train in which this car was, which yards are used by the defendant company for placing all cars preparatory to their being made up into trains; that the goods were not stopped at Kansas City at all, but passed through to Argentine, Kan., from which point they were to have been forwarded to the place of destination, but were never delivered to the consignee. It is further admitted by both parties that, if the defendant in any way failed to perform any duty which defendant owed to the plaintiff, such failure only occurred at Argentine, Kan., on the 31st day of May, 1903." Defendant then moved for judgment on the pleadings and admissions. The motion was sustained, and judgment entered for defendant.

For the purposes of the motion for judgment, defendant, in effect, eliminated the defense pleaded in the answer, that the property was destroyed by the act of God, and relied for defense on the sole proposition that the cause of action accrued at Argentine, Kan., and was barred by the statute of limitations of that state, which under the provisions of section 4280, Rev. St. 1899 [Ann. St. 1906, p. 2355],

must be applied in the courts of this state. In this posture of the case, we must assume as established the facts that defendant as a common carrier accepted the shipment at Great Bend, Kan., for delivery at Boston, that it failed to deliver, and that such failure was the result of the loss of the property at Argentine by some tortious act or neglect of defendant. In other words, the motion necessarily is based on the hypothesis that plaintiff is entitled to recover in this action, but for the bar thereto interposed by the Kansas statute. It will be observed that the petition is carefully drawn to plead a cause of action ex delicto as distinguished from one in the nature of assumpsit founded on a breach of the contract of transportation. The cause of action alleged is the failure of defendant to discharge its common-law obligation to deliver the property at its destination. Plaintiff takes the position that the breach of duty occurred at the place of delivery, and consequently that the cause accrued at that place, and that the cause of the failure to deliver (such as an act of God or the public enemy) is immaterial as long as it is not shown to be one which would excuse the carrier from liability under the common law. On the other hand, defendant argues that the act of the carrier which disabled it from discharging its common-law duty to deliver is the real cause of action, and that the fact that the property was not delivered is but evidentiary, and in no sense creative of the cause of action. We are of opinion that plaintiff has the better of the argument and that the learned trial judge erred in sustaining the motion for judgment. At common law the obligation of a common carrier with respect to the subject of transportation is that of an insurer. It is liable for loss of or damages to the property regardless of the nature of the cause of injury. To this rule there are certain exceptions. If the carrier can show that the proximate cause of its apparent breach of duty was some overwhelming force such as the act of God or the public enemy, or that it resulted from unavoidable accident, from the fraud or fault of the owner of the goods, or from some inherent defect or infirmity of the goods themselves, which has caused the injury, it will be relieved of its obligation of an insurer, and will not be held to respond in damages for the loss or injury sustained. In the absence of proof of such excusing fact, the burden of which is on the carrier, the fact of failure to deliver of itself constitutes a cause of action, and the plaintiff neither in his pleading nor evidence is required to go behind that fact to show the specific misconduct that incapacitated the carrier from delivering the goods. The owner of goods lost in transportation by a cause which will not relieve the carrier from liability may have several different causes of action, any one of which he may elect to prosecute. He may sue, as we have said, in tort for breach of the commonlaw duty to deliver, or for breach of the contract of transportation, or by treating the carrier as a mere bailee, may allege the specific tortious act by which the goods were lost and found his right to re

cover on that. The place where the goods were to be delivered is the place where the cause originates in the first-mentioned class of actions, but the place where the tortious act occurred is that where the cause arises which is based on the specific misconduct that produced the injury. The cause pleaded in the present action being for breach of the common-law duty to deliver the goods in Boston, the statute of limitations in force in Massachusetts (under the provisions of section 4280, Rev. St. 1899 [Ann. St. 1906, p. 2355]) controls the time in which that action may be prosecuted in this state, and the learned trial judge erred in holding that the Kansas statute should be applied. There is nothing in the case of Lamar Mfg. Co. v. St. Louis & S. F. R. Co., 117 Mo. App. 453, 93 S. W. 851, at variance with what we have said. It is true that, when the carrier sustains the burden of showing that the loss or injury to the goods was the direct result of an act of God, the burden of proving that the carrier, notwithstanding the presence of such excusing cause was guilty of concurring negligence which directly contributed to the loss or injury, is on the plaintiff; but that rule goes only to a matter of defense, and cannot operate to change either the nature or the situs of the cause of action. With the defensive matter met by proof of concurring negligence, the cause still rests on the failure of the carrier to deliver the goods at their destination.

But it is argued by defendant that the admission made by plaintiff "that, if the defendant in any way failed to perform any duty which defendant owed to the plaintiff, such failure only occurred at Argentine, Kansas, on the 31st day of May, 1903," made the tort, if any, which occurred at that place the ground of his action. We do not agree with this contention. Construed in the light of the pleadings and of the other facts admitted, we think it was not within the contemplation of the parties to attempt to change the cause pleaded in the petition, and that the parties meant only to agree that, if the goods. were lost through the misconduct of defendant, such misconduct occurred at Argentine. Whether the fact of the place where the goods were lost was admitted by the parties or was made a matter of proof, it would be immaterial to the cause pleaded in the petition, and, in any event, could be only material to prove or disprove the defensive issue that the goods were destroyed by an act of God or by some other cause that would excuse the carrier from its common-law liability.

It follows from what has been said that the judgment must be reversed, and the cause remanded. All concur.

LIVERPOOL & G. W. STEAM CO. v. PHENIX INS. CO. (Supreme Court of the United States, 1889. 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788.)

For a report of this case, see supra, p. 331.97

97 As to liability of carriers in general, see notes, 63 L. R. A. 513; 18 L R. A. (N. S.) 874; also Prentice, The Origin of the Right to Engage in Interstate Commerce, 17 Harv. Law Rev. 20, 30 (1903). Much confusion existed among the state courts regarding the rules governing the validity of contracts exempting carriers from liability for negligence. The majority of courts determined their validity in the first place with reference to the law of the place where the contract was made. McDaniel v. Chicago & N. W. R. Co., 24 Iowa, 412 (1868); Ill. Cent. R. Co. v. Beebe, 174 Ill. 13, 50 N. E. 1019, 43 L. R. A. 210, 66 Am. St. Rep. 253 (1898); Brockway v. American Express Co., 171 Mass. 158, 50 N. E. 626 (1898). Others applied the law of the place of delivery. Pittsburgh, C., C. & St. L. Ry. v. Sheppard, 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 732 (1897). Still others emphasized the law of the place where the breach occurred. Hughes v. Pennsylvania R. Co., 202 Pa. 222, 51 Atl. 999, 63 L. R. A. 513, 97 Am. St. Rep. 713 (1902). Although the stipulation was valid in accordance with the above rules, it might not be enforced on grounds of public policy if the law of the forum inhibited such stipulations. Cleveland, C., C. & St. L. R. Co. v. Druien, 118 Ky. 237, 80 S. W. 778, 66 L. R. A. 275, 4 Ann. Cas. 1102 (1904); Fox v. Postal Telegraph Cable Co., 138 Wis. 648, 120 N. W. 399, 28 L. R. A. (N. S.) 490 (1909).

The federal courts also declined to enforce such stipulations. The Kensington, 183 U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190 (1902). Effect has been given to such stipulation, however, where it related to transportation of property on a foreign vessel on a voyage which did not include a port of the United States. The Fri, 154 Fed. 334, 83 C. C. A. 205 (1907).

Carriage by land is now governed in this regard by the Carmack and Cummins Amendment to the Interstate Commerce Act of March 4, 1915, c. 176, § 1, 38 Stat. 1196, 1197 (U. S. Comp. St. §§ 8592, 8604a), which prohibits such stipulations. Carriage by sea is governed by the provisions of the Harter Act of February 13, 1893, c. 105, 27 Stat. 445 (U. S. Comp. St. §§ 8029-8031). CONTINENTAL AND SOUTH AMERICAN LAW-International transportation by rail is governed on the continent almost exclusively by the Convention of Berne of 1890.

As regards transportation by sea the ordinary rules relating to contracts govern. In the absence of an express stipulation or circumstances showing a contrary intent (see App. Paris, March 19, 1907, 34 Clunet, 1139, where the national law of the parties was applied), the obligations arising out of a contract of carriage are governed by the law of the place where such contract is made. France, Cass. Feb. 23, 1864 (D. 1864, 1, 166); App. Douai, June 17, 1897 (S. 1898, 2, 202); App. Douai, March 2, 1907 (35 Clunet, 456). Italy, art. 58, Com. Code; Cass. Turin, Aug. 23, 1887 (4 Autran, 337); Cass. Naples, Feb. 27, 1899 (14 Autran, 841); App. Naples, July 16, 1905 (21 Autran, 687). Germany, on the other hand, applies again the law of the place of performance. Liability for freight is governed therefore by the law of the place of destination. RG, April 19, 1903 (33 Clunet, 196); April 29, 1903 (33 Clunet, 1168). If a voyage is not completed, the liability for freight may be determined in accordance with the law of the place where the voyage ends. RG, Jan. 23, 1897 (7 Niemeyer, 450). The liability of a connecting carrier is governed by the law to which such carrier is subject. RG, April 10, 1901 (12 Niemeyer, 112).

According to Argentine and Brazilian law, the law of the place of destination will control if the shipment is to an Argentine or Brazilian port. Article 1091, Arg. Com. Code; article 628, Braz. Com. Code. In Brazil the provision is held to be mandatory. Fed. Sup. Ct., Dec. 14, 1912 (41 Clunet, 639).

The Convention of Montevideo on Commercial Law applies the lex domicilii