Berry Coal & Coke Co. v. Chicago, Peoria & St. Louis Railway Co.

• Decision Date: 16 January 1906
• Citation: 92 S.W. 714,116 Mo.App. 214
• Parties: BERRY COAL & COKE CO., Respondent, v. CHICAGO, PEORIA & ST. LOUIS RAILWAY CO., Appellant
• Court: Missouri Court of Appeals

92 S.W. 714

116 Mo.App. 214

BERRY COAL & COKE CO., Respondent, v. CHICAGO, PEORIA & ST. LOUIS RAILWAY CO., Appellant

Court of Appeals of Missouri, St. Louis

January 16, 1906

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

REVERSED AND REMANDED.

STATEMENT.--Both the parties to this action are incorporated companies. Plaintiff, under the name of Berry Coal & Coke Company, is the successor of the Berry-Horn Coal Company, and as such owns all the rights and interests of its predecessor. This action is in form trover, and was brought to recover damages alleged to have been suffered by the conversion of 1,360 sacks of cement, known as Alpha-Portland Cement, an article manufactured at Alpha, New Jersey. The petition states that on May 11, 1903, the Alpha-Portland Cement Company consigned to the plaintiff's predecessor, the Berry-Horn Coal Company, for delivery at East St. Louis, Illinois, 1,360 sacks of cement, to be carried by lake and rail, in care of the Lehigh Valley Railroad Company, the Atchison, Topeka & Santa Fe Railroad Company and the Chicago, Peoria & St. Louis Railroad Company, the defendant. That the consignor delivered the cement to the Lehigh Valley Railroad Company at Alpha New Jersey. The petition further states that about June 1 1903, this defendant, the Chicago, Peoria & St. Louis Railroad Company, received said cement and undertook pursuant to said consignment and as the last carrier in the line of transit, to deliver the cement to the Berry-Horn Coal Company at East St. Louis, Illinois; that after the expiration of a reasonable time for arrival at destination plaintiff demanded the cement of the defendant and defendant refused and still refuses to deliver it. The petition charges that the value of the cement at East St. Louis at the time it should have been delivered, was $ 850, and prays damages to that amount.

The answer, besides a general denial, contains these averments: The Lehigh Valley Railroad Company delivered the cement mentioned in the petition, at Buffalo, New York, on board the steamer Seneca, a vessel owned by the Lehigh Valley Transportation Company, for water transportation to Chicago, Illinois; on May 18, 1903, the steamer went aground in the St. Clair river with the cement on board and constituting part of the cargo; it became necessary to lighter the cargo and use tugs to release the steamer, and to incur expense in so doing; the owners and master of the steamer incurred such expense and the steamer and cargo were thereby saved; the Lehigh Valley Railroad Company received the cement from the steamer Seneca at Chicago, May 22, 1903, said company being instructed by the Lehigh Valley Transportation Company, the owners of the steamer, not to deliver the cement to the consignee at East St. Louis, Illinois, until said consignee had signed a general average bond, agreeing to pay its part of the expense of rescuing the vessel; said bond was delivered to said Lehigh Valley Railroad Company at the time it received the shipment; the Lehigh Valley Railroad Company delivered the shipment to the Atchison, Topeka and Santa Fe Railroad Company at Chicago with a like instruction and accompanied by the average bond; the railroad company last named delivered the cement to this defendant with the same instruction and the same bond; the cement arrived at East St. Louis May 29th, loaded in two cars and, thereupon defendant presented plaintiff, as successor of the consignee, the Berry-Horn Coal Company, the average bond and requested plaintiff to sign it, tendering plaintiff the sacks of cement on condition that it signed the bond. Plaintiff refused to sign and defendant continued to hold the cement ready for delivery whenever the bond was signed. Afterwards, and while in defendant's custody, the cement was destroyed by an overflow of the Mississippi river. The averments of the destruction of the property by the flood are not material to the questions before us, and need not be cited; as there is a concession that the destruction occurred through the act of God. The answer further states that after all but a small part of the cement had been destroyed, plaintiff agreed to sign the average bond, provided the cement had not been injured by the flood.

The reply was a general denial.

For the plaintiff there was testimony going to show the purchase of the cement, its cost and value. This was practically all the evidence for the plaintiff. At the conclusion of it, the defendant requested the court to declare that under the pleadings and evidence it was not entitled to recover; but the court refused the request.

Certain facts were agreed to by the parties, the substance of which is as follows: The cement was received May 18, 1903, on board the steamer Seneca, at Buffalo, for transportation by water to Chicago, Illinois. The steamer sailed from Buffalo on said date at 12:05 a. m., bound for its port of destination. The voyage was prosperous until May 19th at two o'clock a. m., at which time the steamer "was running on the range at the head of the southeast bend of the St. Clair river." While at that point of her voyage, the steamer's steering gear refused to work on the starboard side. The auxiliary steering gear was put into force, but before the vessel could be stopped, she went aground at Squirrel Island Point. "The vessel was found to be out three feet six inches forward and one foot aft." The Master immediately sent to Detroit for lighters and a tug, which arrived the next day and the vessel was lightered of about 600 tons and thereby released so she could proceed on her voyage at 5:20 a. m. She moved up the St. Clair river, came to anchor at 6:15 a. m. and immediately started to reload the cargo, which was put aboard by 7:15 p. m. on that day. It was found on examination of the hull and water bottom, that a number of the frames were broken and the shell plates corrugated. The owners and masters of the vessel became liable to the owners of the tug and lighters for the services of the latter vessels in aiding the Seneca, and also become liable and promised to pay for services rendered in repairing the vessel; all of which liabilities the owners of the Seneca subsequently paid. By the use of the tug and lighters the Seneca and all its cargo were saved, and but for the use of them both would have been lost. The steamer arrived at Chicago, May 22, 1903, and, thereupon, its owner, the Lehigh Valley Transportation Company, delivered the cement to the Atchison, Topeka & Santa Fe Railroad Company at Chicago, and at the same time delivered to said railroad company the two waybills accompanying the shipment, with this direction written on each: "680 bags of cement, under protest; property not to be delivered until attached average bond is signed by the consignee. Return bond to E. J. Henry, Agt. L. V. T. Co." The average bond was attached to the waybills. The Atchison, Topeka & Santa Fe Railroad Company, carried the cement to Pekin and there delivered it to the Chicago, Peoria & St. Louis Railroad Company, at the same time delivering said average bond and the waybills containing the instruction that the cement was not to be delivered until the average bond was signed.

On May 23, 1903, John A. Whiteside, Master, Reynolds Hill, Engineer, and S. P. Campbell, Mate, executed a protest before a notary public in the county of Cook, State of Illinois, stating the charges for the cement to be $ 68.40 on each 680 sacks or $ 136.80 on the whole shipment of 1,360 sacks, and that the property was not to be delivered until the average bond was signed by the consignee. The protest contained the details in regard to the going aground of the Seneca and her rescue by lightering the cargo, as we have stated them. On the waybills was a notation of the advances on the cement to the amount of $ 136.80, to be collected from the consignee before delivery of the property. It was further agreed that the average bond and protest, and the direction on the waybills regarding the condition and delivery of the property, were made by the Lehigh Valley Transportation Company, the owner of the steamer Seneca. The average bond was as follows:

"Whereas it being represented that the steamer Seneca, whereof J. A. Whiteside is, or lately was Master, having on board a cargo of general merchandise in which we are interested as owners, shippers or consignees, sailed from port of Buffalo on or about the eighteenth day of May, 1903, bound for Milwaukee and Chicago, and in the course of her said voyage, the steamer grounded at southeast bend of St. Clair River, May 19, 1903, and it became necessary to lighter cargo and use tugs to release the steamer, and certain other expenses were entered into, and that thereby certain losses and expenses were incurred, and other further losses and expenses, consequent thereon, may yet be incurred, and that such losses and expenses may be a charge by way of general average or otherwise, upon the vessel, her freight and cargo, or either of them.

"Now therefore, we, the subscribers, owners, shippers or consignees of such of the cargo of said vessel as we have severally described and set opposite our respective signatures hereto, in consideration of the premises and of the delivery to us respectively of such cargo, or so much thereof as may be saved, without retention pending an adjustment of said losses and expenses, do hereby, for ourselves, our respective executors and administrators, severally and respectively but not jointly, nor the one for the other, covenant and agree to and with the Lehigh Valley Transportation Co., owners or agents of the owners of the said vessel and with one another, that the losses and expenses aforesaid, or so much thereof, as upon an adjustment of the same to be stated by ...