Blackmer & Post Pipe Co. v. Mobile & O. R. Co.

• Decision Date: 23 February 1909
• Parties: BLACKMER & POST PIPE CO. v. MOBILE & O. R. Co. et al.
• Court: Missouri Court of Appeals

119 S.W. 1

137 Mo. App. 479

BLACKMER & POST PIPE CO. v. MOBILE & O. R. Co. et al.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

Rehearing Denied May 11, 1909.

1. ACTION (§ 47)—JOINDER—CONTRACT AND TORT.

Under Rev. St. 1899, § 593 (Ann. St. 1906, p. 619), relating to the joinder of causes of action, it is bad pleading to join a cause of action

for an alleged breach of contract by a carrier to convey goods with a cause of action for its breach of legal duty to convey them safely except as against the act of God or the public enemy.

2. CARRIERS (§ 127)—CARRIAGE OF GOODS— DAMAGES DURING TRANSIT—REMEDIES OF SHIPPER.

A shipper, whose goods are damaged while being transported by a carrier, has the choice of declaring either in assumpsit on the contract of affreightment or in tort for breach of the duty imposed on the carrier by law to carry safely.

3. CARRIERS (§ 173)—CARRIAGE OF GOODS— CONTRACT FOR THROUGH SHIPMENT.

The lines of the M. & O. Company extended south from East St. Louis and connected with another line which extended to New Orleans. A carrier in St. Louis received goods to be shipped south over the other lines, transferred them across the river by ferry, and delivered them to a terminal association line in East St. Louis which transferred them to the M. & O. Company for shipment. The carrier in St. Louis received a certain sum for transferring the cars, which was divided with the terminal association, and gave the shipper a receipt, which it surrendered in East St. Louis for a bill of lading from the M. & O. Company covering the entire route to New Orleans. Held, that the St. Louis carrier and the terminal association were not joint promisors with the M. & O. Company for the carriage of the goods over the entire route, and, if the receipt received from the St. Louis carrier could be regarded as a bill of lading for through carriage, the agreement was relinquished by receiving as a substitute the bill of lading from the M. & O. Company.

4. CARRIERS (§ 180)—CARRIAGE OF GOODS— CONNECTING CARRIERS—RESTRICTION OF INITIAL CARRIER'S LIABILITY AS INSURER.

Rev. St. 1899, § 5222 (Ann. St. 1906, p. 2718), providing that where property is received by a carrier for transportation within or without the state, or it issues receipts or bills of lading within the state, the carrier shall be liable for any loss or damage to the property by its negligence or the negligence of any other carrier to which the property may be delivered or over whose line the property may pass, impliedly allows an initial carrier to restrict its liability as insurer to its own line, notwithstanding the main purpose of the act is to make it liable for negligence occurring on a connecting line, and notwithstanding that the act also makes a carrier issuing a receipt or bill of lading in the state liable for damage to property caused by its negligence or the negligence of a connecting carrier.

5. CARRIERS (§ 180)—CARRIAGE OF GOODS— RESTRICTION OF LIABILITY FOR NEGLIGENCE.

An initial carrier could not under the statute restrict its liability for the negligence of itself or its connecting carriers.

6. CARRIERS (§ 173)—CARRIAGE OF GOODS— CONSTRUCTION OF BILL OF LADING—CONTRACT FOR THROUGH SHIPMENT.

A bill of lading recited that the property was received at St. Louis by the M. & O. Company to be transported by that "company to _____." The destination was left blank in the body of the receipt, but at the foot were the words "consigned to T. J. Shea, New Orleans, La.," and still farther below, under the heading "List of articles," was the notation "c/o N. O. & N. E., F. W. Birchett." The contract recited, among its printed conditions, that the receiving company agreed to carry the property to destination, if on its road, and, if not on its road, and the company guaranteed through carriage, then it agreed to deliver to such other carrier as the company might select, and did not agree to carry beyond its own line, or be responsible beyond, under any circumstances. At the foot of the bill of lading, and after the signatures, it was declared that the fact that the property was marked beyond the company's line would not be understood as an agreement to carry beyond. Held, that the bill of lading was for a through shipment to New Orleans.

7. CARRIERS (§ 180)—CARRIAGE OF GOODS— RESTRICTION OF LIABILITY AS INSURER— CONSIDERATION.

As to interstate through shipments made by an initial carrier before the amendment of the interstate commerce act (Act Feb. 4. 1887. c. 104 § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169], as amended by Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1907, p. 906]), forbidding the limitation by an initial carrier of its liability as insurer where it contracts to carry through, it could limit its liability as insurer for a consideration such as a reduced rate of freight.

8. CARRIERS (§ 185)—CARRIAGE OF GOODS— DAMAGE DURING TRANSIT—ACTIONS.

Under Rev. St. 1899, § 5222, as amended by Laws 1905, p. 53 (Ann. St. 1906, p. 2718), allowing an owner of damaged property which has been transported by several connecting carriers to join in his action for damages the initial carrier and all the others, and permitting him to recover from the one through whose negligence the injury was sustained, the plaintiff in such an action must not only prove that the property was damaged by negligence, but must prove which carrier damaged it.

9. TRIAL (§ 260) — INSTRUCTION — REQUESTS COVERED BY CHARGE GIVEN.

It was not error to refuse a request substantially covered, so far as it was accurate, by a charge given by the court of its own motion.

10. CARRIERS (§ 187)—CARRIAGE OF GOODS— DAMAGE IN TRANSIT—ACTIONS—INSTRUCTIONS.

In an action against connecting carriers for damages to goods in transit shipped on a through bill of lading providing for immunity of the initial carrier from liability for breakage in consideration of a reduced rate, where the evidence as to whether there was a reduced rate was conflicting, a charge exempting defendants from liability if the quantity of breakage was only such as was usually incident to the shipment of such goods was erroneous, since it would not be correct as to the initial carrier unless there was a reduced rate.

11. CARRIERS (§ 186)—CARRIAGE OF GOODS— DAMAGE IN TRANSIT—DAMAGES.

If an initial carrier charges full rates on a through shipment, making it an insurer, the measure of damages as against it for injury to the goods would be the difference between the value of the goods at destination, if sound, and the value as they arrived.

12. CARRIERS (§ 186)—CARRIAGE OF GOODS— DAMAGE IN TRANSIT—MEASURE OF DAMAGES.

If the initial carrier charged a reduced rate on a through shipment of sewer pipe in consideration of an exemption from its liability as insurer, the measure of damages as to the carrier in fault, where the goods were negligently injured, would be the difference between the value of the goods at destination less usual breakage, and their value in the condition in which they really arrived.

13. CARRIERS (§ 154)—CARRIAGE OF GOODS— DAMAGE IN TRANSIT—ACTIONS—NECESSITY FOR NOTICE OF CLAIM.

There must be a consideration to sustain the stipulation in a bill of lading making notice of a claim for damages to goods in transit a condition precedent to recovery by the shipper.

14. CARRIERS (§ 159)—CARRIAGE OF GOODS— DAMAGE IN TRANSIT—NOTICE OF CLAIM— WAIVER.

Where a carrier waives the omission of a shipper whose goods have been damaged in transit to give notice of its claim for damages as required by the bill of lading, the shipper's action for damages cannot be defeated by the omission.

15. CARRIERS (§ 159)—CARRIAGE OF GOODS— DAMAGES IN TRANSIT—NOTICE OF CLAIM— SUFFICIENCY.

If it was the custom of a carrier to accept a verbal notice to its agent of a claim of a shipper for damage to goods and to treat it as a good notice, the custom would be binding on it.

16. APPEAL AND ERROR (§ 1173)—DETERMINATION OF CAUSE—REVERSAL AS TO ONE OR MORE COPARTIES.

Rev. St. 1899, § 773 (Ann. St. 1906, p. 750), providing that where there are several defendants, only one final judgment shall be given, contemplates that the one judgment shall dispose of the controversy as to all the parties, and hence on appeal in such a case, where a remand is necessary as to certain parties, the judgment below in favor of all the defendants cannot be affirmed as to some of them and reversed and remanded for another trial and judgment disposing of the controversy as to the others.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by the Blackmer & Post Pipe Company against the Mobile & Ohio Railroad Company and others. Verdicts were directed for certain of the defendants, and the jury found for the others, and plaintiff appeals. Reversed and remanded.

Action for damages entailed on plaintiff by the breaking of sewer pipes while in transit over the lines of the Mobile & Ohio, Missouri Pacific, the New Orleans & Northeastern Railway Companies, and the Terminal Railroad Association, which are joined as defendants. Four car loads of the pipes were shipped September 19, 1903, and one car October 15, 1903, and the petition is in two paragraphs or counts for damage to pipes in the two shipments. The number and value of the pieces broken in each car are stated. The total value of the pieces broken in the four cars which made up the first shipment is laid at $285.77, and the total value of the pipes broken in the car which constituted the second shipment at $59.40, for which sums judgments are prayed in the first and second counts of the petition. The four defendants are alleged to have been separate railway companies and "in possession of and operating connecting lines of railway which, taken together, extended from plaintiff's factory in the city of St. Louis, Mo., to the city of New Orleans, in the state of Louisiana, and that each of them was and is a common carrier of goods and...