Bockserman v. St. Louis & H. Ry. Co.

• Decision Date: 14 December 1912
• Citation: 152 S.W. 389,169 Mo. App. 168
• Parties: BOCKSERMAN v. ST. LOUIS & H. RY. CO.
• Court: Missouri Court of Appeals

152 S.W. 389

169 Mo. A. 168

BOCKSERMAN v. ST. LOUIS & H. RY. CO.

St. Louis Court of Appeals. Missouri.

December 14, 1912.

1. CARRIERS (§ 185) — CARRIAGE OF FREIGHT — LIABILITY — PRESUMPTIONS.

Where goods in sound condition are delivered to an initial carrier for transportation, and are never delivered by the connecting carrier or are delivered in damaged state, the presumption is that the damage or loss occurred while in possession of the connecting carrier, and, in the absence of evidence to the contrary, no recovery may be had against the initial carrier therefor.

2. CARRIERS (§ 132) — CARRIAGE OF FREIGHT — LIABILITY — PRESUMPTIONS.

Where a cause of action against a carrier for damage to or loss of freight is founded on negligence of the carrier, the burden of proving negligence is on plaintiff.

3. CARRIERS (§ 177) — CARRIAGE OF FREIGHT — INITIAL CARRIER — LIABILITY.

Under the statute, a shipper may enforce liability against the initial carrier for the negligence of the connecting carrier.

4. CARRIERS (§ 173) — CARRIAGE OF FREIGHT — INITIAL CARRIER — LIABILITY.

A shipper may enforce the common-law liability of an insurer against the initial carrier alone, provided the shipment is a through one and the contract of shipment so stipulates; for the connecting carrier is but an agent of the initial carrier in the transportation.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by I. C. Bockserman against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. D. Hostetter, of Bowling Green, and Barclay, Fauntleroy, Cullen & Orthwein, and W. R. Gilbert, all of St. Louis, for appellant. Bernard Greensfelder, of St. Louis, and Frederick W. Neeper, of Hannibal, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant in transporting a shipment of goods from Hannibal to Washington, Mo. On a trial before the court without a jury plaintiff had judgment, and defendant prosecutes the appeal. Originally the Wabash Railroad Company and the Missouri Pacific Railway Company, which completed the transportation, were made defendants, but the suit was dismissed as to the two latter carriers before the trial was had, and proceeded to judgment against defendant, the initial carrier alone.

The evidence tends to prove that plaintiff owned a store in Hannibal, and, desiring to remove his goods to Washington, Mo., packed and loaded them in a car of defendant at Hannibal. After so doing, defendant issued a bill of lading to plaintiff, and assumed the obligation of transporting the goods over its own line and delivering to the connecting carrier for Washington. There were in all 32 boxes of goods. Upon the car reaching its destination at Washington, Mo., several of the boxes were found to have been broken open and the goods removed therefrom. It is said the total value of the goods lost was $705.54. Plaintiff prosecutes the suit for the value of the goods so lost.

The petition, after enumerating the articles of merchandise, avers: "The items of merchandise above mentioned were * * * lost * * * through the negligence, carelessness, and neglect of defendants' agents, servants, and employés." There is no suggestion in the petition that defendant is pursued on its common-law liability of an insurer, but solely on the ground of negligence. There were no instructions given at the trial and none requested, save one of a peremptory character by defendant, which sought the direction of a verdict for it, and this instruction was refused. While there is an abundance of evidence in the record tending to prove the loss of the goods somewhere in transit, there is nothing to suggest negligence on the part of defendant or on the part of its servants. Because of this, it is argued the judgment should be reversed, for it is said, if one charges negligence, then the law devolves upon him the duty of proving the charge as laid.

Under the rule of decision which obtains in this state, the argument...