American Fruit Growers v. St. Louis, B. & M. Ry. Co.

• Decision Date: 01 April 1924
• Docket Number: No. 18466.,18466.
• Citation: 261 S.W. 949
• Parties: AMERICAN FRUIT GROWERS, Inc., v. ST. LOUIS, B. &. M. RY. CO.
• Court: Missouri Court of Appeals

261 S.W. 949

AMERICAN FRUIT GROWERS, Inc., v. ST. LOUIS, B. &. M. RY. CO.

No. 18466.

St. Louis Court of Appeals. Missouri.

April 1, 1924.

Rehearing Denied May 20, 1924.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by the American Fruit Growers, Inc., against the St. Louis, Brownville & Mexico Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green and M. U. Hayden, both of St. Louis, for appellant.

Leahy, Saunders & Walther and J. L. London, all of St. Louis, for respondent.

ALLEN, P.J.

Plaintiff, a corporation engaged in the business of buying and selling fruits and vegetables, brings this action against the defendant railway company, on its common-law liability as a common carrier, to recover loss and damage alleged to have accrued to plaintiff by reason of the alleged failure of defendant to perform the duty resting upon it as such common carrier with respect to five various shipments of cabbage and one shipment of onions.

The petition is in six counts. The first count charges that on March 12, 1920, one Arts, as consignor, in the city of Alamo, Tex., placed in the possession of defendant as a common carrier, and as the initial carrier, for transportation, a carload of cabbage in good, sound, merchantable condition, weighing about 29,070 pounds; that the cabbage had been sold by said consignor to plaintiff as consignee, and that, in consideration of certain freight charges paid or to be paid to it, defendant agreed to carry said shipment from Alamo, Tex., to St. Louis, Mo., and there delivered the same to plaintiff, as consignee, in as good condition as when received by it, but that, in violation of its common-law duty as a common carrier, and in disregard of its said agreement, defendant delivered the cabbage to plaintiff at St. Louis in a "spoiled, deteriorated, decayed, and yellow condition," so that plaintiff was forced to sell the same at a loss of $446.44, for which, with interest, judgment is prayed.

The remaining counts are substantially like the first, each growing out of the shipment of a carload of cabbage, except the last or sixth count, which grows out of the shipment of a carload of onions.

In the second count it is alleged that the shipment was delivered to defendant by the Leeland Association of Leeland, Tax., on March 22, 1920, to be transported to St. (Louis, there to be delivered to plaintiff as consignee; plaintiff averring that It "had purchased said carload of cabbage and was the consignee in the bill of lading of said. shipment." On this count judgment is prayed for $632.01, with interest.

In the third count the shipment is alleged to have been placed in the possession of defendant by plaintiff at Donna, Tex., on March 30, 1920, to be transported to St. Louis, and there delivered to plaintiff as consignee. On this count judgment is prayed for $201.19.

In the fourth count the shipment is alleged to have been delivered to defendant by the Hodge & Howell Produce Company, at Weslaco, Tex., for transportation to St. Louis, consigned to plaintiff, and that it was reconsigned by plaintiff to itself at Cleveland, Ohio. On this count judgment is prayed for $917.80.

In the fifth count the shipment is alleged to have been delivered to defendant by the Pharr Truck Growers' Association at Pharr, Tex.. for transportation to St. Louis, Mo., to the plaintiff as consignee. Judgment is prayed on this count for $172.97.

In the sixth count the carload of onions, constituting the subject-matter of the shipment, is alleged to have been delivered to defendant by said Arts on May 8, 1920, at La Feria, Tex., consigned to plaintiff, and that plaintiff reconsigned the same to its agent at Boston, Mass. On this count judgment is prayed for $502.75.

The answer to each of the six counts of the petition is a general denial.

The trial before the court and a jury resulted in a verdict for plaintiff on each of the six counts of the petition, as follows: On the first count for $516.33; on the second count for $731.01; on the third count for $232.34; on the fourth count for $1,060.57; on the fifth count for $198.92; on the sixth count for $576.88. From a judgment entered accordingly, the defendant has appealed.

The evidence shows that in none of the bills of lading involved in the six counts of the petition was the plaintiff corporation, named as consignee, but in the bills of lading the name "Pepper-Biederman Produce Company," or "Pepper & Biederman," appeared as the consignee. The only question raised on appeal as to the sufficiency of the evidence to sustain the judgment is predicated upon the fact that plaintiff was not named as the consignee in these bills of lading; and it will therefore be necessary to notice only so much of the testimony in the record as related to that matter.

Relative to the shipment involved in the first count of the petition, one Willen, as plaintiff's witness, testified that he was the traffic manager as well as assistant manager, of the plaintiff corporation, the American Fruit Growers, Incorporated, having been employed by plaintiff since March 1 1920; that previously he had been employed by the Pepper-Biederman Produce Company in the capacity of traffic manager. Over defendant's objections he testified that on March 1, 1920, the Pepper-Biederman Produce Company was "taken over" by the plaintiff, the American Fruit Growers, Incorporated ; that the Pepper-Biederman Produce Company was prior to March 1, 1920, a partnership, doing business in the city of St. Louis ; that on that date it sold out to plaintiff, the American Fruit Growers, Incorporated, a Delaware corporation with its main office at Pittsburgh, Pa., but that the plaintiff corporation continued to do its business at St. Louis, dealing with various railroads, including defe...