438 F.2d 1403 (8th Cir. 1971), 20396, Phoenix Ins. Co. v. Monon Railroad

Docket Nº:20396.
Citation:438 F.2d 1403
Party Name:PHOENIX INSURANCE COMPANY, Appellee, v. MONON RAILROAD, Appellant.
Case Date:March 11, 1971
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1403

438 F.2d 1403 (8th Cir. 1971)

PHOENIX INSURANCE COMPANY, Appellee,

v.

MONON RAILROAD, Appellant.

No. 20396.

United States Court of Appeals, Eighth Circuit.

March 11, 1971

Page 1404

A. James Dickinson, Stringer, Donnelly, Allen & Sharood, St. Paul, Minn., for appellant.

H. A. Cousineau, Jr., Mordaunt, Walstad, Cousineau & McGuire, Minneapolis, Minn., for appellee.

Before GIBSON and BRIGHT, Circuit Judges, and McMANUS, Chief District judge.

BRIGHT, Circuit Judge.

Plaintiff Phoenix Insurance Company (Phoenix) brought an action against the defendant Monon Railroad (Monon) for the loss of 165 cases of liquor which disappeared from a trailer-load shipment originating with the Calvert Distillers Company in Louisville, Kentucky, and destined for Old Peoria Company, Inc. (Old Peoria) in Minneapolis, Minnesota. Plaintiff Phoenix, Old Peoria's insurer, paid for the latter's loss and brought this action as its subrogee. The district court, Judge Larson, held the railroad responsible for the value of the lost merchandise. Monon appeals from the judgment entered against it. We affirm.

Monon operates its rail lines between Louisville and Chicago, Illinois. It contends that there is no proof that the loss occurred on its line and that it bears no responsibility beyond its Chicago terminal. As part of its defense, Monon asserts that it did not furnish rail transportation as an initiating carrier on a through bill of lading to Minneapolis.

The transportation in the instant case commenced at Calvert's distillery in Louisville, Kentucky. There, the shipper loaded 949 cases of its liquor into a trailer unit furnished by Monon and carried by Monon's contract draymen from the distillery to its railroad yards in Louisville. At that point, the defendant railroad placed the loaded trailer, piggyback style, on a flatcar. After sealing the trailer, Monon provided rail transportation for the cargo from Louisville to Monon's Chicago rail yards, which are located at Hammond, Indiana. Monon then removed the trailer from the flatcar, and following instructions from the consignee's representative, provided motor freight transportation of this trailer to the Milwaukee Road 1 at the latter's Chicago rail yards, located in Bensonville, Illinois. The Milwaukee Road furnished further railway transportation to Minneapolis. At this point, Old Peoria, as consignee, accepted delivery of the trailer. Upon opening the unit, the consignee discovered the shortage, although the original seals placed on the trailer by Monon remained intact when delivered to Old Peoria.

The bill of lading executed by Monon, in addition to describing the trailer and

Page 1405

its contents and showing Calvert Distillers as shipper, bore the words:

Consigned to OLD PEORIA COMPANY INCORPORATED 701 STINSON BOULEVARD

Destination MINNEAPOLIS State MINN

After the legend 'Route', the face of the bill bore a typewritten notation: 'MONON-- PLAN 2-- CHICAGO C/O ITOFCA.' The designation 'ITOFCA' refers to Illinois Trailer on...

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