American Storage & Moving Co. v. Wabash Railroad Co.
| Decision Date | 14 December 1909 |
| Citation | 123 S.W. 964,146 Mo.App. 224 |
| Parties | AMERICAN STORAGE & MOVING COMPANY, Appellant, v. WABASH RAILROAD COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wm. M. Kinsey Judge.
REVERSED AND REMANDED.
On May 2, 1907, plaintiff shipped over defendant's railway line to Chicago, Illinois, a carload of household goods belonging to E. B. Leigh. The shipment was pursuant to the order of Leigh, owner of the goods, who at the time was indebted to plaintiff for some years' storage of the goods and for moving and packing them, all in the sum of $ 281, for which sum plaintiff held a lien on them. The goods were turned over to defendant company for transportation, consigned to the order of plaintiff, to which a bill of lading was given by defendant, and plaintiff indorsed on the bill an order to deliver the property to E. B. Leigh, or order, drew a draft on Leigh for $ 281, the amount of plaintiff's lien attached the draft to the bill of lading, and put the same in a bank in St. Louis to be transmitted to Chicago for collection. The draft was not paid and the bill of lading was returned. With the indorsement it read as follows:
(In pencil) "E. K. Rel val. 5.00 cart.
A witness for plaintiff said the notation was inserted in the receipt at Leigh's request. Defendant carried the goods to its terminal yards on Forty-seventh street in Chicago, where the car was transferred by a switch engine to Fortieth and Robey streets, and there taken in charge by the Chicago Junction Railroad Company, or Terminal, as it is called. The latter company is a terminal railroad company located in the city of Chicago, to which other railroad companies whose lines run into said city, deliver cars at their terminals to be transported over the tracks of the junction railroad to consignees when the latter have no places of business reached by the lines of the other companies. There is no proof in the record of what the Chicago Junction Railroad Company did with the household goods, or whether it did anything with them; but it is inferable it carried the goods from defendant's terminal yard to the place where they were turned over to Leigh, the owner. So far as the record shows, the delivery of the goods to Leigh was done by defendant. An attorney for plaintiff testified he talked with the chief clerk of defendant's freight department with regard to the matter, and that clerk stated the car had been delivered to Leigh, never mentioning the Chicago Junction Company in the conversation with the witness. The whole tenor of the conversation, as related by the witness, is that defendant company had made the delivery. The witness said he asked the chief clerk why defendant had delivered the property to Leigh without the receipt or bill of lading being taken up and the clerk said Leigh had given a bond of indemnity to the Wabash Company, and Leigh, who was connected with a railway equipment company, and plaintiff, ought to get together and settle their differences. The receipt issued by defendant said the property was received for transportation subject to the conditions of defendant's bill of lading, no other bill of lading or receipt was put in evidence by either party, and it is to be inferred from the testimony no other was issued. Plaintiff requested this instruction which the court refused:
"The court instructs the jury that if they find and believe from the evidence that the plaintiff delivered the household goods mentioned in the complaint to the defendant for shipment to Chicago; that said goods were the property of one E. B. Leigh, and that said E. B. Leigh was indebted to plaintiff for moving, packing and storing said goods; and if you further find that said plaintiff consigned said goods to itself and received a bill of lading or receipt from said defendant by which said defendant agreed to deliver said goods to plaintiff or to plaintiff's order; and if you further find that plaintiff forwarded said bill of lading, together with a draft upon said E. B. Leigh, for the amount of plaintiff's charges against him; and that said E. B. Leigh refused to pay said draft and said receipt or bill of lading was returned to plaintiff; and if you further find that said defendant, without authority from plaintiff and without the surrender of said bill of lading or receipt, and without collecting the amount of plaintiff's charges against said Leigh for storing, moving and packing said goods, delivered said goods to said E. B. Leigh and that the said indebtedness of said E. B. Leigh to this plaintiff has never been paid or discharged, you will find for the plaintiff."
At defendant's request the court directed the jury to return a verdict in its favor, which having been done and judgment entered accordingly, plaintiff appealed. The object of this action was to recover as damages the amount of plaintiff's lien on the goods or $ 281 alleged to have been lost by wrongful delivery of them to Leigh.
Judgment reversed and cause remanded.
Davidson & Russell for appellant.
(1) The receipt given constituted an agreement of the defendant to deliver the car of goods to the American Storage & Moving Company at Fortieth and Princeton avenue, Chicago, Illinois. Wohl v. Holt, 26 Wis. 703; Marshall & Michel Grain Co. v. Railroad, 176 Mo. 480; Marshall & Antles v. Railroad, 74 Mo.App. 81; Sash & Door Co. v. Railroad, 177 Mo. 641; Grain Co. v. Railroad, 120 Mo.App. 203; Milling Co. v. Railroad, 127 Mo.App. 80; Holland v. Railroad, 133 Mo.App. 694; Popham v. Barnard, 77 Mo.App. 628. (2) A common carrier is bound to transport goods to the point of destination designated by it, even though its lines do not reach such point and it is compelled to use another line in order to complete such transportation. Cases cited above; also, Buffington v. Railroad, 118 Mo.App. 476; Bushnell v. Railroad, 118 Mo.App. 618; McLendon v. Railroad, 119 Mo.App. 128; Ingwerson v. Railroad, 116 Mo.App. 139; Bank v. Railroad, 72 Mo.App. 82. (3) A receipt or bill of lading is the symbolical representative of the goods themselves, and the carrier has no right to make a delivery of the goods to anyone without the surrender of the receipt or bill of lading. Such unauthorized delivery is a conversion of the goods. American Z. L. & S. Co. v. Lead Works, 102 Mo.App. 158; Schwarzschild & S. Co. v. Railroad, 76 Mo.App. 623; Grain Co. v. Railroad, 176 Mo. 491; Ferry Co. v. Railroad, 128 Mo. 224. (4) Defendant was estopped by the representations of its chief clerk to deny that it delivered the goods to E. B. Leigh, and estopped to deny that such delivery was a violation of its contract of shipment. Layson v. Cooper, 174 Mo. 211; Hackett v. Van Franck, 105 Mo.App. 384; Ratcliff v. Lumpee, 82 Mo.App. 335.
N. S. Brown and Walter N. Davis for respondent.
(1) Plaintiff...
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