Milne v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 21 February 1911
• Citation: 155 Mo. App. 465,135 S.W. 85
• Court: Missouri Court of Appeals
• Parties: MILNE et al. v. CHICAGO, R. I. & P. RY. CO.

135 S.W. 85

155 Mo. A. 465

MILNE et al. v. CHICAGO, R. I. & P. RY. CO.

St. Louis Court of Appeals. Missouri.

February 21, 1911.

Rehearing Denied March 7, 1911.

1. CARRIERS (§ 113)—CARRIAGE OF GOODS— DELIVERY TO CARRIER.

The liability of a common carrier attaches as soon as the delivery of goods for transportation is complete, so as to place on the carrier the exclusive duty of seeing after their safety.

2. CARRIERS (§ 41)—CARRIAGE OF GOODS— DELIVERY TO CARRIER—ACTS CONSTITUTING.

Where a carrier places one in a depot, and holds him out to the public as qualified to receive shipments, a delivery to and an acceptance by him is a delivery to the carrier.

3. CARRIERS (§ 136)—CARRIAGE OF GOODS— DELIVERY TO CARRIER—JURY QUESTION.

Whether a carrier by the issuance of a bill of lading accepted a car of lumber for transportation is a question for the jury.

4. CARRIERS (§ 52) — CARRIAGE OF GOODS — BILL OF LADING—EFFECT.

A bill of lading fair on its face calling for the transportation of a car of lumber is prima facie proof of the carrier's receipt and acceptance of the lumber.

5. TRIAL (§ 382)—TRIAL BY COURT—QUESTIONS OF FACT.

Where trial is to the court, it may disregard all evidence offered by the one upon whom rests the burden of proof, even though the other party offers no evidence; the weight of the evidence and the credibility of the witnesses being within its province.

6. APPEAL AND ERROR (§ 1010)—REVIEW— FINDINGS—CONCLUSIVENESS—FACTS TO SUSTAIN DECISION.

A finding by a trial court sitting as a jury will not be disturbed on appeal for the insufficiency of the evidence, unless there be no substantial evidence to sustain it upon any theory.

7. CARRIERS (§ 134)—CARRIAGE OF GOODS— FINDING—SUFFICIENCY OF EVIDENCE.

Evidence held to support a finding that a common carrier accepted a car of lumber for transportation and issued its bill of lading therefor.

8. CARRIERS (§ 52) — CARRIAGE OF GOODS — BILL OF LADING—EFFECT.

A bill of lading is only prima facie proof that the carrier received the goods, being a mere receipt which may be rebutted, not being like the contractual clauses contained therein.

9. EVIDENCE (§ 121) — RES GESTÆ — STATEMENTS CONNECTED WITH TRANSACTION— WRITINGS—DEATH OF PERSON MAKING.

Where the seller of a car of lumber, since deceased, in accordance with his usual course of business, inclosed with the bill of lading an invoice written by himself, and mailed both to the consignee, when the lumber was delivered to the carrier, and at the same time drew on him for part of the purchase price, and it appeared that the seller loaded the car and knew the quantity and quality of the lumber, the invoice was admissible against the carrier to show the facts, being admitted under the principles relating to res gestæ, and considered as a verbal act.

10. EVIDENCE (§ 121)—RES GESTÆ — WRITINGS—MEMORANDUM.

Memoranda of account, when jotted down on slips of paper to be entered upon the books contemporaneously with the transaction they represent, when made in accordance with the regular custom and usage of business, are competent to be received in evidence under the principles of res gestæ just as the books are.

11. EVIDENCE (§ 121)—WRITINGS—BOOKS OF ACCOUNT—ENTRIES BY DECEDENT.

Self-serving entries in a book of account made by a decedent in his own handwriting in accordance with his usual course of business are admissible in evidence, both on the ground of res gestæ and because of the necessities of the case.

12. EVIDENCE (§ 121) — WRITINGS — PRIVATE MEMORANDA—DEATH OF PERSON MAKING.

Contemporaneous memoranda made by a decedent in the usual course of business, where he had knowledge of the facts as to a transaction, are admissible in evidence on the ground of the necessities of the case and as a part of the res gestæ, though not made to be entered in a permanent book, this principle extending to cases where the party who made the entry is insane or detained by a serious illness, and probably to a case where he is absent from the jurisdiction.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by W. W. Milne and James Milne, doing business as the Milne Lumber Company, against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

W. F. Evans and Robert & Robert, for appellant. W. H. Allen, for respondents.

NORTONI, J.

This is a suit against a common carrier on the obligation of an insurer annexed by law to its calling for the value of a car load of lumber which was lost to plaintiffs while in its possession. Plaintiffs recovered and defendant prosecutes the appeal.

Plaintiffs are copartners and conduct a wholesale lumber business in the city of St. Louis, and defendant is an incorporated railroad company, engaged in the business of a common carrier of freight between Price, Ark., and St. Louis, Mo. The lumber involved was loaded on defendant's car at what is spoken of in the evidence as a "blind switch" at Price, in the state of Arkansas, on December 16th, and afterwards consumed by fire that night. The "blind switch" referred to at Price is but a railroad siding where cars are loaded, and at which defendant is not represented by a depot or station agent. Price is located about 12 miles east of Hot Springs, and it is the rule for bills of lading with respect to such cars as are loaded there to be issued by defendant's agent at a nearby station. Defendant resists liability for the car of lumber on the theory that it had not received it for shipment at the time of its loss, and insists that, though its bill of lading was outstanding therefor, the same was procured by plaintiffs' consignor and agent through a fraudulent representation to the assistant of its agent at Hot Springs. There is no doubt that in some circumstances a common carrier may become responsible for the property intrusted to its care for transportation even before a bill of lading is issued, but the proof does not disclose that situation here. There is no evidence that the car was placed upon the siding at Price for the particular purpose of receiving this shipment of lumber, and therefore operating as an invitation to load it, nor does it appear defendant's agent accepted the goods with directions to transport the same and deliver to the consignee aside from the transaction which occurred when the bill of lading was issued. The liability on this score must be determined alone by reference to the acceptance of the shipment under the bill of lading and its recital as to defendant's receiving the same in good order for transportation to the plaintiffs at St. Louis. Plaintiffs introduced the bill of lading as prima facie proof of their case.

It is made to appear on the part of defendant that one Easley, who was a dealer in lumber and a shipper from the point in question, called upon defendant's station agent at Hot Springs on December 16th, and informed him that he had loaded a car of lumber at defendant's side track at Price, 12 miles from there, for plaintiffs, and requested the agent to issue a bill of lading therefor. Defendant's agent says he declined to issue the bill of lading for the reason he had not seen the car of lumber, and, further, that it was defendant's rule that for cars consigned to St. Louis from that point an agent east of Price should issue the bill of lading, but afterwards a bill of lading was issued to Easley for the identical car of lumber by his assistant in the office, and that such bill of lading was obtained from his assistant by a false representation on the part of Easley. Defendant's assistant also testified that Easley called upon him late in the afternoon and procured the issue of the bill of lading by him through stating the agent, Mr. Reamey, had directed it. One Murphy also gave testimony to the same effect, but the force of his statement was greatly impaired in the cross-examination.

It is conceded defendant's assistant had authority in proper circumstances to issue bills of lading such as that involved here and to sign the agent Mr. Reamey's name thereto, as he did in this instance. The bill of lading for the car of lumber was issued to Easley in the afternoon, and it seems was mailed to plaintiff that night or the next day with an invoice of the contents of the car attached. Easley himself was not a witness at the trial, for it appears he departed this life between the time of shipping the lumber and the institution of the suit. There can be no doubt that the duties and obligations of a common carrier with respect to the goods commence with their delivery to it; that is, as soon as the delivery is complete so as to place upon the carrier the exclusive duty of seeing after their safety. It is true, too, that where the carrier places a person in charge of the business at a depot and holds him out to the public as being qualified with the requisite authority to receive shipments a delivery to and an acceptance by such agent of the goods is a delivery to the carrier. Hutchinson on Carriers (3d. Ed.) §§ 105, 106, 119. Where there is a controversy as to whether or not the goods were actually delivered to the carrier for transportation and received by it so as to invoke the obligation which the law entails with respect to that calling, the question is usually one for the determination of the jury. It is said where one goes to the station of a common carrier, and finds a person there in the office asserting authority and exercising the acts which pertain to the occupation of the station agent, he has a right to deal with him as such, and if a delivery of goods is made to such person for transportation by the carrier and he accepts it, the question of whether or not the goods were actually delivered to the carrier is one for the jury. Hutchinson on Carriers (3d Ed.) § 106; Ouimit v. Henshaw, 35 Vt. 605, 84 Am. Dec. 646; Harrell v. Railroad Co., 106 N. C. 258, 11 S. E. 286. So it is in this case. We believe the...