Amber v. Davis
| Decision Date | 01 March 1926 |
| Docket Number | No. 15217.,15217. |
| Parties | AMBER v. DAVIS, Agent, etc. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.
Action by C. I. Amber, doing business as the Denison Produce Company, against James C. Davis, as Agent of the President. Judgment for plaintiff, and defendant appeals. Judgment affirmed on condition of remittitur ; otherwise reversed and remanded.
Sebree & Sebree, of Kansas City, Homer Hall, of St. Louis, and Henry L. Jost and Mord M. Bogie, both of Kansas City, for appellant.
Maurice Weinberger and John O. Park, both of Kansas City, for respondent.
This is a suit in two counts, each involving a separate shipment of a carload of eggs from Seneca, Kan., to Chicago, Ill. The case was tried by the court without the aid of a jury, resulting in a judgment in favor of plaintiff on the first count in the sum of $421.25 and on the second count in the sum of $1,005.24, and defendant has appealed.
The cause of action covered by the first count was before this court in the case of Amber v. Payne, 239 S. W. 588, where practically all of the facts involved in that count are stated except some additional facts that will be hereinafter noted. We will dispose of this count first.
The petition alleges that plaintiff on the 6th day of April, 1918, delivered to defendant's predecessor, and the latter received, a carload of eggs consigned to Lepman & Heggie at Chicago, Ill., and on the same day ha notified defendant's predecessor that Lepman & Reggie were not lawfully entitled to possession of the car, and defendant's predecessor agreed to deliver the car of eggs to F. Friedman of Chicago, to whom plaintiff had sold the eggs at 341 cents per dozen; that defendant's predecessor violated the said agreement and failed to deliver the eggs to F. Friedman, but delivered them to Lepman & Heggie, and "thereby converted same to said predecessor's own use"; that at the time defendant's predecessor agreed to deliver the eggs to Friedman, plaintiff notified him that he had sold the eggs to Friedman for 341/2 cents per dozen.
When plaintiff received Lepman & Heggie's rejection of the eggs, he went to the office of the assistant general freight agent of the Wabash Railroad Company, which defendant's predecessor was operating on behalf of the government. There he asked for the general freight agent, and was introduced to the latter's chief clerk, to whom he showed the original bill of lading issued by the Kansas City Northwestern Railroad, the initial carrier. He told the chief clerk that Lepman & Heggie had refused the car, and that he had sold the eggs to Friedman at 34½ cents per dozen, and that he wanted the car delivered to Friedman. The chief clerk said he would wire Chicago (which he did later), and that if plaintiff would leave the bill of lading he would endeavor to have the car diverted to Friedman. After a few days plaintiff received by mail the bill of lading with Lepman & Heggie's name erased and "F. Friedman, in care of Central Cold Storage Company, Kenzie & Dearborn streets," substituted, and the words "diverted as above by R. W. Owens, agent, Wabash Railroad," indorsed upon it, all in the handwriting of the chief clerk.
Defendant's predecessor and his representatives at Chicago paid no heed to the wire of the chief clerk, and on the 10th day of April, 1918, delivered the car to Lepman & Heggie, who took possession of the same and sold the eggs. On April 15th, Friedman wrote to plaintiff complaining of nondelivery. Plaintiff did not learn until about two weeks after his conversation with the chief clerk what had become of the eggs. On learning that they had been delivered to Lepman & Heggie, he again went to the office of the assistant general freight agent, and the chief clerk suggested that he see Lepman & Heggie, and if he could not get the full price of 34½ cents a dozen from them, to file a claim with the assistant general freight agent for the balance.
At plaintiff's suggestion, the chief clerk wrote plaintiff that the delivery of the eggs to Lepman & Heggie was due to the overlooking of the wire, that we have heretofore referred to, by the Chicago office of the railroad company. The letter also stated:
Thereupon plaintiff made a trip to Chicago at an outlay of $50, and settled with Lenman & Heggie for $4,225.75, and filed claim with defendant's predecessor for the balance, which claim defendant's predecessor refused to pay, and plaintiff brought this suit.
The settlement with Lepman & Heggie was on the basis of 32½ cents a dozen. There was some controversy between them in regard to another car, so that the amount plaintiff actually received from Lepman & Heggie was $180 less than what he would have otherwise received for the eggs at the rate of 32½ cents a dozen. The court rendered judgment for plaintiff on the first count for the difference between the amount received from Lepman & Heggie and the price at which the eggs were sold to Friedman, less $180 and plus $50 expense money, or $324.20, together with $97.05 interest from April 10, 1918, the day of the misdelivery.
Defendant insists that its demurrer to the evidence should have been sustained for the reason that Lepman & Reggie and defendant's predecessor were joint tort-feasors, and that when plaintiff settled with Lepman & Heggie and gave to them a full release, he thereby released the defendant, and that section 4223, R. S. 1919, relating to release of one or more joint tort-feasors without releasing all, does not apply, for the reason that the release was executed in the state of Illinois, and that the presumption is that the common law is in force there. This contention, no doubt, would be good if it were not for the fact that the settlement with Lepman & Heggie was as a result of an agreement with defendant's predecessor. The settlement was for the benefit of defendant's predecessor, who was liable for the full value of the car of eggs. While the written release executed by plaintiff in favor of Lepman & Reggie purported to release all claims that plaintiff had against them, and as between the parties thereto, was no doubt a complete release, it was not such as between defendant's predecessor and plaintiff, for plaintiff and defendant's predecessor agreed that the settlement with Lepman & Heggie would merely be a discharge pro tanto of the defendant. To hold otherwise would be to permit the remaining joint tort-feasor to violate grossly his own agreement and thereby to sanction a most palpable fraud upon plaintiff and cheat him out of his money. Lipman & Reggie had refused to take the car and when plaintiff settled with them at 32½ cents per dozen, he did not recover all that he was entitled to. There was no ratification, as defendant contends, of the acts of defendant and Lepman & Heggie in delivering the car to the latter when plaintiff settled with Lepman & Heggie.
At defendant's request, the court declared the law to be that the chief clerk had no authority to write the letter to plaintiff concerning the making of the settlement with Lepman & Heggie, for the reason that to hold otherwise would be allowing an unlawful preference to plaintiff not given to other shippers in direct violation of the law's of the United States. The writing of this letter and the circumstances surrounding, the matters therein mentioned were not disputed at the trial. In fact, defendant's chief clerk admitted that he wrote it. We think there was no unlawful preference given to plaintiff in having him first settle with Lepman & Heggie and thereafter file a claim against the defendant for the balance of his loss. This correspondence took place after the carriage had been completed and the rights of the parties fixed, and it was merely a method taken by defendant in settling plaintiff's loss which Was clearly for the benefit of the defendant, as defendant was liable for the full loss. That there was no unlawful preference seems to us quite clear. Roberts on Federal Liability of Carriers, § 156. Defendant was not entitled to the declaration of law, and as the conclusion reached by the court was undoubtedly right, we may disregard this declaration of law. Robinson v. Rice, 20 Mo. 229; Fairbanks-Morse Co. v. Stock Food Co., 131 S. W. 894, 151 Mo. App. 260 ; Baumhoff v. St. Louis & Kirkwood Ry. Co., 71 S. W. 156, 171 Mo. 120, 125, 94 Am. St. Rep. 770.
The tariff filed with the Interstate Commerce Commission provides that the carrier shall not be responsible for failure to effect a diversion or reconsignment, unless such failure is due to the negligence of its employees, and that where exchange bills of lading are desired, they shall be issued only after the reconsignment is accomplished. There was ample evidence of negligence on the part of defendant's predecessor in his failure to make the diversion in this case, and there is no evidence that the bill of lading was changed prior to the time the reconsignment was accomplished. The evidence shows a telegram was sent to the agent of defendant's predecessor at Chicago immediately upon receipt of notice from plaintiff that a diversion or reconsignment was desired. He did not receive the amended bill of lading until several days after this conversation, so the tariff provisions were complied with even if the changing of the bill of lading herein is to he construed as an...
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