Blackmer v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 31 March 1903
• Citation: 73 S.W. 913,101 Mo. App. 557
• Court: Missouri Court of Appeals
• Parties: BLACKMER et al. v. CLEVELAND, C., C. & ST. L. RY. CO.

73 S.W. 913

101 Mo. App. 557

BLACKMER et al. v. CLEVELAND, C., C. & ST. L. RY. CO.

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

CARRIERS — RAILROADS — COAL — CONVERSION — QUESTION FOR JURY — DAMAGES — DETERMINATION — PUNITIVE DAMAGES — DEDUCTION OF FREIGHT.

1. Defendant railroad company notified a coal company that thereafter none of its cars

on the side track at the mines should be loaded with coal for any other customer than defendant. Prior to such notification defendant had permitted its cars to be loaded to be carried to any consignee, and the coal company was under contract with plaintiffs to furnish them constantly a certain portion of the output of the mines. The coal company did not assent to the notification, but loaded the cars set out, and notified defendant's agent to bill the coal to plaintiffs. Instead of doing so, the agent marked the bill of lading for defendant's use, by whom it was appropriated. Held, that whether the coal was put on the cars for plaintiffs in such a manner as to constitute a delivery to them, so as to render defendant liable for converting plaintiffs' property, was for the jury.

2. Where a railroad company converted coal consigned to plaintiffs, under a contract by which plaintiffs, were entitled to a certain part of the output of the mine, the measure of plaintiffs' damage was the value of the coal at destination, and not its value at the mine.

3. Where a railroad converted coal consigned to plaintiffs, which they had contracted to deliver to their customers, and there was no evidence that defendant was compelled to use such coal or stop running its trains, but it was proved that the coal was willfully taken without regard to plaintiffs' rights, plaintiffs were entitled to recover punitive damages.

4. Where, in an action for the conversion of coal consigned to plaintiffs by defendant railroad, the agent of the consignor testified that the consignor paid the freight on all coal shipped to plaintiffs once a month, and there was no evidence that plaintiffs were liable for freight on coal so shipped, defendant was not entitled to a deduction of the freight charges from the value of the coal at the point of destination in determining plaintiffs' damages.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by C. E. Blackmer and others against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Wise & McNalty and R. A. Holland, Jr., for appellant. Dawson & Garvin, for respondents.

Statement of Facts and Opinion.

GOODE, J.

The petition in this case is in six counts, each of which charges the defendant with converting to its own use certain car loads of coal which belonged to the plaintiffs, and had been put aboard cars on defendant's tracks at Hillsboro, Ill., by the Hillsboro Coal Company, consigned and to be carried by the defendant to the plaintiffs. The first count of the petition charges the conversion of five car loads of coal on December 18, 1901, and states that the plaintiffs, who were partners doing business in St. Louis under the name of the Hart Coal Company, were under contracts with various persons in said city to deliver daily large quantities of coal to run the factories of said customers, and that the defendant, well knowing the facts and that plaintiffs would not be able to procure other coal to supply its customers, willfully, wantonly, maliciously, and against plaintiffs' protests and entreaties, wrongly converted said car loads of coal to its own use. The remaining five counts of the petition state as many causes of action based on the wrongful conversion of car loads of coal on the 19th, 20th, 25th, and 26th days of December, 1901, and the 8th day of February, 1902. The answer was a general denial.

The jury found a verdict for the plaintiffs, and awarded them both actual and punitive damages on each of the counts. From the judgment entered on said verdict, this appeal was prosecuted.

The evidence strongly supported all the causes of action stated in the petition, and, indeed, to those stated in the fourth, fifth, and sixth counts practically no defense was made, the defendant admitting that it appropriated the coal consigned to the plaintiffs on those days, but contending that the measure of damages for the conversion was the value of the coal at Hillsboro, where it was taken, and not at East St. Louis, its destination.

As to the first, second, and third counts, the defense was made that the railroad company never accepted the car loads of coal mentioned in said counts to be carried to the plaintiffs as the plaintiffs' property, but that, on the contrary, said coal was delivered to the defendant by the Hillsboro Coal...