Scott County Milling Co. v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 30 April 1907
• Citation: 104 S.W. 924,127 Mo.App. 80
• Parties: SCOTT COUNTY MILLING COMPANY, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

104 S.W. 924

127 Mo.App. 80

SCOTT COUNTY MILLING COMPANY, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 30, 1907

Appeal from Mississippi Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

Judgment affirmed.

James F. Green and Ernest A. Green for appellant; Martin L. Clardy of counsel.

(1) The defendant is not liable in this case because the loss was caused by fire, for which the bill of lading expressly provided that the defendant should not be liable. No negligence of defendant caused the fire or contributed to it. Standard Milling Co. v. Transit Co., 122 Mo. 258; Gashweiler v. Railroad, 83 Mo. 112; Davis v Railroad, 89 Mo. 340; Witting v. Railroad, 101 Mo. 631; Otis Co. v. Railroad, 112 Mo. 622. (2) Nor can defendant be held liable, because the bill of lading expressly stipulated that for any loss or damage occurring in the transit of the property the legal remedy, if any, should be against the particular carrier in whose custody the said property might actually be at the time of the happening thereof. Defendant was not liable beyond its own line. Dimmitt v. Railway, 103 Mo. 433; Reed v Railroad, 60 Mo. 199; Grain & Elevator Co. v Railroad, 138 Mo. 658; Nines v. Railroad, 107 Mo. 475; Hance v. Railroad, 56 Mo.App. 476; Nenno v. Railroad, 105 Mo.App. 540; Eckles v. Railroad, 112 Mo.App. 240. (3) The consignee did not make claim for damages in accordance with the terms of the bill of lading, and such failure relieved defendant of any liability. Bank v. Railroad, 119 Mo.App. 14; Bellows v. Railroad, 118 Mo.App. 500; Harned v. Railroad, 51 Mo.App. 482; Dyas v. Hanson, 14 Mo.App. 363; Dawson v. Railroad, 76 Mo. 514; Ward v. Railroad, 158 Mo. 236; Leonard v. Railroad, 54 Mo.App. 293; Rice v. Railroad, 63 Mo. 314; Darlington v. Railroad, 99 Mo.App. 1; Freeman & Hinsen v. Railroad, 118 Mo.App. 526; Smith v. Railroad, 112 Mo.App. 610. (4) The bill of lading expressly provided that the liability of defendant as a common carrier terminated upon the arrival of the property at the place of delivery. There was no negligence on the part of defendant and hence no liability on its part. Grier v. Railroad, 108 Mo.App. 565; Freeman & Hinsen v. Railroad, 118 Mo.App. 526; Ratliff Bros. v. Railroad, 118 Mo.App. 656.

W. C. Russell for respondent.

(1) The bill of lading offered in evidence, according to all the authorities, is a contract to carry the flour from Sikeston, Missouri, to Yazoo City, Mississippi. Marshall v. Railroad, 74 Mo.App. 81; Marshall and Michel G. Co. v. Railroad, 176 Mo. 480; Western S. & D. Co. v. Railroad, 177 Mo. 641; Powder Co. v. Railroad, 101 Mo.App. 442. (2) The contract being one for a through shipment the initial carrier's responsibility continued until the goods arrived at the place of delivery. McCann v. Eddy, 133 Mo. 59; Powder Co. v. Railroad, 101 Mo.App. 442; Pindell v. Railroad, 34 Mo.App. 685; Pindell v. Railroad, 41 Mo.App. 84; Rankin v. Railroad, 55 Mo. 171. (3) The liability of the defendant in this case was that of an insurer of the freight committed to its care and custody and it could not exempt itself from liability as such except by special agreement understandingly made, and based on an adequate consideration. The testimony shows that the flour was billed at the regular tariff rate, and the bill of lading shows that six cents per hundred-weight was paid in and the testimony of L. R. Bowman shows that this was paid by surrendering an expense bill which the milling company held against the railroad company. So, there being no consideration for the clause in the bill of lading exempting the railroad company from liability, the milling company had the right to treat them as nullities and hold the defendant as an insurer. Kellerman v. Railroad, 136 Mo. 177; Richardson v. Railroad, 149 Mo. 311.

OPINION

GOODE, J.

--This action was brought to recover the value of a carload of flour shipped by the respondent, or its predecessor, the Bowman Mathews Milling Company, from Sikeston, Missouri, to Yazoo City, Mississippi, and destroyed by fire at the latter point while still in the custody of the appellant as a common carrier, it is alleged. Respondent, the Scott County Milling Company, a corporation, was formed May 20, 1904, by the consolidation of two other milling companies, the Greer-Ebert and the Bowman-Mathews. The flour was delivered to the appellant by the Bowman-Mathews Milling Company on January 12, 1904, for transportation to Yazoo City, consigned to the order of the shipper, with a direction to appellant to notify the W. R. Hyatt Company, at Yazoo. A draft was drawn by the shipping company on the company to be notified, attached to the bill of lading and sent for collection to a bank at Yazoo. On payment of the draft the Hyatt Company would become entitled to the flour. The bill of lading was issued by appellant to the Bowman-Mathews Milling Company and will be copied, omitting portions not material to this controversy.

"THE MISSOURI PACIFIC RAILWAY COMPANY Leased, Operated and Independent Lines. ___ Division of ___ Railway,

"Jan. 12, 1904.

"Received from Bowman-Mathews Milling Co., the following property, in apparent good order, marked and numbered as per margin, to be transported from ___ to ___ and delivered to the consignee, or a connecting common carrier. The property aforesaid may pass through the custody of several carriers before reaching its destination, and it is understood as a part of the consideration for which the said property is received, that the exceptions from liability made by such carriers respectively shall operate in the carriage by them respectively of such property, as though herein inserted at length; and especially that neither of said carriers, or either or any of them, or this company, shall be liable for losses, etc. . . . .

"And it is further especially understood, that for all loss or damage occurring in the transit of said property, the legal remedy shall be against the particular carrier only in whose custody the said property may actually be at the time of the happening thereof--it being understood that

THE MISSOURI PACIFIC RAILWAY COMPANY

Leased, Operated and Independent Lines,

in receiving the said property to be forwarded as aforesaid, assumes no other responsibility for its safety or safe carriage than may be incurred on its own road. . . .

"Claims for damages must be reported by consignee in writing, to the delivering line within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery. If such notice is not then given, neither this company, nor any of the connecting or intermediate carriers shall be liable. In the event of the loss of property under the provisions of this agreement, the value, or cost of the same at the point of shipment shall govern the settlement.

"Notice. The responsibility of this company as a common carrier terminates upon arrival of the property at station or place of delivery. Free storage will be given for forty-eight hours thereafter (exclusive of Sundays and legal holidays) at the risk of the owner; if not removed at the expiration of that time the property will, at the option of the carrier, either be removed and stored in a public warehouse, at owner's cost and risk, or will be retained in the carrier's possession, as warehouseman, subject to warehouse charges. . . .

"Notice. In Accepting This Contract the shipper or other agent of the owner of the property carried, expressly accepts and agrees to all its stipulations and conditions.

"Consigned to Sh-O Ntfy W. R. Hyatt Co.

"At Yazoo City, Miss.

"Weight and classification subject to correction.

Marked

List of Articles

Weight

Mo P

150 Brls Flawless Flour

30,000

21359

100 1/2 Brls Flawless Flour

10,000

40,000

"E. St. L. paid in 6c per cwt. T. E. Dover, Agt. Endorsed: Bowman-Mathews Milling Co. Per. L. B. BOWMAN."

Appellant's line ran no further than Memphis, to which point it carried the flour and there delivered it to the Mississippi River & Yazoo Valley R. R. Company, a branch line of the Illinois Central Railway Company, to be carried to destination; which was done. The time consumed in transit from Sikeston to Yazoo City was longer than usual. The car arrived at the latter point at 9:10 a. m., January 21, 1904, and was placed on what is known as the "House Track," "before 6 p. m. of January 22, 1904," the agent of the Yazoo Company swore. He also swore notice was given on January 22d to the W. R. Hyatt Company that the car had arrived and was ready for delivery. It was set on the house track in order that it might be unloaded into the Hyatt Company's warehouse, but the railway company's agent could not tell when it was set there more definitely than as just stated. The warehouse was consumed by fire about two o'clock a. m. January 23 that is about eight hours after the latest moment at which the car may have been placed on the house track for unloading. The flames spread from the warehouse to the car and destroyed the flour. It should be stated that the bill of lading did not mention the rate to be charged, nor was any rate agreed to verbally; but the testimony for plaintiff was that the rate charged was the usual one from Sikeston to Yazoo City. It was not paid in cash but, it seems, by the settlement of some outstanding account between the Bowman-Mathews Company, the shipper and the defendant company, the witness said, by "the surrender of an independent St. Louis expense bill"--saying also: "We shipped at the regular tariff rate." For the defendant the testimony was that no through rate from Sikeston to Yazoo City was published by it. This action was brought by respondent, as successor of the ...