ABC Fireproof Whse. Co. v. Atchison, T. & SF Ry. Co.

• Decision Date: 09 September 1941
• Docket Number: No. 11929.,11929.
• Citation: 122 F.2d 657
• Parties: A. B. C. FIREPROOF WAREHOUSE CO. v. ATCHISON, T. & S. F. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

122 F.2d 657 (1941)

A. B. C. FIREPROOF WAREHOUSE CO. v. ATCHISON, T. & S. F. RY. CO.

No. 11929.

Circuit Court of Appeals, Eighth Circuit.

September 9, 1941.

Walter A. Raymond, of Kansas City, Mo. (William G. Holt, of Kansas City, Mo., on the brief), for appellant.

Dean Wood, of Kansas City, Mo. (Cyrus Crane, George J. Mersereau, and John N. Monteith, all of Kansas City, Mo., on the brief), for appellee.

Before GARDNER and JOHNSEN, Circuit Judges, and COLLET, District Judge.

JOHNSEN, Circuit Judge.

On a previous appeal, 8 Cir., 82 F.2d 505, 519, we reversed a judgment for plaintiff, and said: "We conclude that the trial court was in error in refusing to find that the claim asserted and sued on by the warehouse company in this case had been fully adjudicated against it in the litigation in the state courts." On a remand, the trial court entered a summary judgment in favor of defendant, under Rule 56(b) and (c) of the Federal Rules of Civil Procedure, 28 U. S.C.A. following § 723c, and plaintiff has appealed.

The state court litigation which we regarded as res adjudicata of the warehouse company's right of action was Train v. Atchison, Topeka & Santa Fe Railway Co., 214 Mo.App. 354, 253 S.W. 497. The situation in that case, as in the present action, arose out of the fact that the warehouse company had undertaken to act as shipping agent for the transportation of three automobiles, belonging to separate owners, from Kansas City, Missouri, to Los Angeles, California. Under its contract with the owners, its responsibility was to cease on delivery of the property to the railway company. It arranged for the automobiles to be shipped by freight, in a single boxcar, under a bill of lading issued to it as consignor. The warehouse company's employees had charge of the loading, and, before the car was sealed, they undertook to drain the gasoline from the automobile tanks. The fumes of the gasoline were ignited from a lighted lantern, which they were using, and the automobiles were destroyed. Train, as the owner of one of the automobiles, brought suit, on the ground of negligence, against both the warehouse company and the railway company, in state court, for the value of his property.

Each defendant claimed that the other was solely liable for the loss. The answer of the warehouse company alleged that it had delivered the automobiles to the railway company as carrier and had received its bill of lading therefor; that the property was accordingly in the exclusive possession of the railway company and the latter was solely responsible for it; that, if the fire was due to the acts of any servants or employees of the warehouse company, they were acting outside the scope of their employment, and the warehouse company was not liable for their acts. The railway company's answer in turn alleged that at the time of the fire the property was still in the hands and under the control of the warehouse company; that the fire was due to the acts of the latter's employees in undertaking to drain the gasoline with the use of a lighted lantern; and that the railway company was accordingly not liable for the resulting damage. Each party tendered instructions in support of its opposing theory, some of which the trial court gave and some of which were refused. The jury returned a verdict against both defendants.

Each defendant appealed, claiming that, as to it, the evidence was insufficient to establish liability. The Kansas City Court of Appeals affirmed the judgment as to the warehouse company, but held that the evidence failed to establish liability as to the railway company. Its opinion said (page 504 of 253 S.W.): "While the bill of lading had been signed, yet the shipper still retained a control over the goods to enable it to finish its work of preparation of the goods for the shipment which was solely its work and not the railway company's. And the specific negligence charged is shown by the proof to be the negligence of the shipper or agent of the owner, and not that of any employee of the railway company."

The warehouse company ultimately was held liable to the owners of all the automobiles, and it seeks to recoup itself from the railway company, by this action on the bill of lading. Manifestly, there could be no liability on the part of the railway company, if the control of the property was still in the hands of the warehouse company at the time of the fire, and if the fire was occasioned by the acts of its employees while engaged in the duty of preparing the goods for shipment. On those questions the warehouse company and the railway company had clearly made themselves legal adversaries in the Train case, by pleadings which drew a specific challenge against each other before the court and jury, by evidence which fully developed the material facts in their conflicting positions, by instructions which could leave no jury doubt as to the elements of separation between...