Blackmer & Post Pipe Company v. Mobile & Ohio Railroad Company

• Decision Date: 11 May 1909
• Citation: 119 S.W. 1,137 Mo.App. 479
• Parties: BLACKMER & POST PIPE COMPANY, Appellant, v. MOBILE & OHIO RAILROAD COMPANY et al., Respondents
• Court: Missouri Court of Appeals

119 S.W. 1

137 Mo.App. 479

BLACKMER & POST PIPE COMPANY, Appellant, v. MOBILE & OHIO RAILROAD COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

May 11, 1909

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

REVERSED AND REMANDED.

STATEMENT.--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 carloads 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, Missouri, 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 passengers for hire." It is then averred as follows in the first count, of which the second is, with suitable changes to fit the shipment, a duplicate:

"That the defendant, Mobile & Ohio Railroad Company, had a business office in the city of St. Louis and was doing a railroad freight and passenger business in the State of Missouri making through freight rates over said route out of said city of St. Louis to New Orleans and undertaking to carry freight therefor by means of said other railroads connecting with its road as aforesaid, from St. Louis to New Orleans in its own cars and other cars furnished by it to shippers, including this plaintiff.

"That on, to-wit, Sept. 19, 1903, plaintiff delivered to defendants and defendant received the following property, goods and chattels, to-wit:

"Four carloads of sewer pipe loaded on cars furnished by defendants said sewer pipe then being in good condition for transportation, which said property in condition as aforesaid, defendants agreed for and in consideration of certain through freight charges to be paid, well and safely to carry from plaintiff's said factory in the city of St Louis to the city of New Orleans in the State of Louisiana and at the latter place to deliver the same to T. J. Shea in as good condition as when received from plaintiff as aforesaid.

"But plaintiff says that in violation of their said agreement and in total disregard of their duties as common carriers as aforesaid, defendants so carelessly and negligently conducted themselves in the premises that said property was greatly injured by breakage."

Each defendant filed a separate answer, but those of the Mobile & Ohio and the New Orleans and Northeastern Companies are much the same. The Mobile & Ohio Company's answer says as follows: the five cars of pipes mentioned in the petition were delivered to the Missouri Pacific Company and received by it at plaintiff's plant in St. Louis, Missouri destined to New Orleans, and were delivered to the Mobile and Ohio Company for transportation to Meridian, Mississippi, there to be delivered to the New Orleans & Northeastern Company for delivery to the consignee in New Orleans; the Mobile & Ohio Company had no line of railway in Missouri, but its railway terminated at East St. Louis, Illinois, and the pipes were received by it in Illinois to be carried from East St. Louis to Meridian, and there delivered, to the New Orleans & Northeastern Company as aforesaid; in consideration of a reduction of the rate of freight plaintiff agreed with the Mobile & Ohio Company the pipes should be plaintiff's risk, and to be bound by all the stipulations, exceptions and condition printed or written in the bills of lading. The answer then pleads in defense these stipulations:

"In consideration of all of which, and especially of said reduced rate, the shipper agrees that every service to be performed by the company hereunder shall be subject to all the conditions herein, all of which the shipper accepts and agrees are just and reasonable; and further agrees that unless the other carriers to which said property may be delivered in the course of transportation to destination make different contract or contracts, the transportation over said connecting carrier's lines shall be upon the terms and conditions hereon. But neither said company nor any other carrier carrying hereunder, as hereby provided, shall be liable for any loss or damage not occurring on its own line, nor after said property is ready for delivery to consignee.

"No carrier or party in possession of all or any part of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control, or by floods, jettison, ice, collisions, delay or quarantine, or by robbers, riots, strikes or stoppage of labor, or by leakage, breakage, chafing, loss of weight, decay, vermin, changes in the weather, heat, frost or wet.

"No carrier shall be liable for loss or damage not occurring on its portion of the route nor after the said property is ready for delivery to the consignee.

"Claims for loss or damage must be made in writing to the agent at the point of delivery, promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier carrying said property shall be liable in any event."

The answer next alleges the goods were safely carried by the Mobile & Ohio Company from East St. Louis, Illinois, to the end of its line at Meridian, Mississippi; that liability for damage, if any occurred, was specifically excepted in the bills of lading in favor of all the carriers in consideration of the reduced rate allowed plaintiff; that "plaintiff did not make claim in writing to the agent of the Mobile & Ohio Company or any other railroad company at the point of delivery, promptly after the arrival of the goods in the city of New Orleans, of damage to said pipe; and did not make claim in writing at the point of delivery of said merchandise within thirty days after the delivery thereof, and for its failure to do so, this defendant (Mobile & Ohio Company) is not liable." It is further averred the breakage of the pipes, if any occurred, was caused from imperfect loading and packing in the cars, by plaintiff itself; the cars coming into possession of said Mobile Ohio Company sealed, so it had no opportunity to inspect the manner in which the packing and loading had been done.

The answer of the New Orleans & Northeastern Company says: the five cars were delivered to it by the Mobile & Ohio Company at Meridian, Mississippi, and were transported by the former company from there to New Orleans, and to the consignee; the Mobile & Ohio Company issued a bill of lading to plaintiff, which was the contract of carriage and for the delivery of the cars of pipe to the consignee in the City of New Orleans; the cars were carried by the New Orleans & Northeastern Company under said contract from Meridian, Mississippi to New Orleans, Louisiana. The same stipulations of the bill of lading are then pleaded which are set up in the answer of the Mobile & Ohio Company, with like averments of performance by the New Orleans & Northeastern Company to carry safely over its line, of exemptions from liability for breakage and for failure of plaintiff to give reasonable notice of a claim for damages, and because the breakage, if it occurred, was due to the improper mode in which the pipes were packed in the cars. The answer of the Terminal Association avers it was, at the time of shipment, engaged in switching cars between the termini of railroads in the city of St. Louis, Missouri and East St. Louis, Illinois, receiving cars from one railroad company and transporting them to the tracks of another railroad company in consideration of switching charges paid for the services; that it was not, as averred in the petition, in possession of or operating a railroad which, connecting with others, extended from plaintiff's factory in St. Louis to New Orleans; that it (Terminal Association) switched the cars in controversy sealed and with no opportunity to inspect their contents, from the Missouri Pacific tracks to the Mobile & Ohio Company's tracks at the latter's request, and delivered the cars to it in consideration of switching charges paid by it (Mobile and Ohio Company), and in doing so acted as agent of the company and not as agent of plaintiff; that said Mobile & Ohio Company delivered to plaintiff and plaintiff accepted bills of lading whereby the Mobile & Ohio Company undertook and agreed to carry said pipes from St. Louis and deliver the same to the consignee in New Orleans; that the Terminal Association was in no way interested in and received no part of the through freight rate charged.

The answer of the Missouri Pacific Company denied it was, in connection with the other defendants, in possession of and operating lines of railway which extended from plaintiff's factory in St. Louis to New Orleans; denied plaintiff delivered to it and it received the cars described in the petition; denied it agreed for certain through freight charges, well and safely to carry said pipes from plaintiff's factory in St. Louis to New Orleans and deliver them to the consignee; denied it ever entered into an agreement with plaintiff to transport...