Bunge Corp. v. Valley Line Supply & Equipment Co.

• Decision Date: 08 May 1972
• Docket Number: No. 55501,No. 2,55501,2
• Parties: BUNGE CORPORATION, a Corporation, Appellant, v. VALLEY LINE SUPPLY AND EQUIPMENT COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 859

480 S.W.2d 859

BUNGE CORPORATION, a Corporation, Appellant, v. VALLEY LINE SUPPLY AND EQUIPMENT COMPANY, a Corporation, Respondent.

No. 55501.

Supreme Court of Missouri, Division No. 2.

May 8, 1972.

Motion for Rehearing or for Transfer to Court En Banc Denied

June 12, 1972.

Gerhard & Reardon, George R. Gerhard, St. Louis, for appellant.

Elmer Price, Milton I. Goldstein, St. Louis, for respondent; Goldstein & Price, St. Louis, of counsel.

MORGAN, Presiding Judge.

A jury returned a verdict in favor of plaintiff in the amount of $15,500 for deterioration in value of a barge load of corn while it was being transported from Savage, Minnesota, to Destrehan, Louisiana, by defendant. The trial court denied defendant's post-trial Motion for Judgment In Accordance With Motions For A Directed Verdict, but sustained defendant's Motion For A New Trial because of the giving of instructions numbered 2 and 6. Plaintiff has appealed.

Factually, it appears tht plaintiff had purchased approximately 100,000 bushels of corn in Minnesota, which defendant, a common carrier of grain on waterways, agreed to transport to Louisiana. It was loaded in barges MV--782 and MV--814, owned by defendant, on October 28, 1966. At time of loading, the grain was inspected by the State Grain Inspection Division of the State of Minnesota under classification standards approved by the U.S. Department of Agriculture. The 48,151.25 bushels loaded in MV--814, involved in this cause, as well as the remainder which was placed in MV--782, were graded as No. 3 yellow corn. The standards mentioned include numerical grades of corn which start with the top grade of No. 1, progress downward through No. 5, with a further grade referred to as 'sample.' All five numbered grades as well as the sample grade are acceptable for human consumption, but that of lesser quality is called 'salvage' and is not. Such classification is based on inspection as to weight per bushel, and percentage of moisture content, damaged kernels and foreign material plus a rather subjective test as to various stages of souring.

Defendant picked up barge MV--782 with its towing vessel on the same day both barges were loaded and delivered it to its destination some thirteen days later on November 10. However, MV--814 remained in the harbor where loaded for some twelve days before it started downriver. After a further delay at Cairo, Illinois, of six days, it arrived thirty days after loading or seventeen days after MV--782. Inspection by government inspectors at Destrehan resulted in most of the cargo of MV--814 being classified as salvage. Plaintiff accepted the highest of three bids or $1.00 per bushel for all of the grain in MV--814 in contrast to the $1.52 1/2 per bushel purchase price, and in this action sought damages of $25,279.41.

We first consider whether or not plaintiff made a submissible case, Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609, 611; Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 336, and, in connection therewith, will first note arguments submitted by defendant.

First, it is argued that plaintiff pleaded specific negligence but failed to prove what constituted a reasonable time for shipment or a causal connection between the transit time of thirty days and damage to the corn. Defendant tenders a suggestion that plaintiff could have avoided such burdens if it had sued defendant under its common law liability as a common carrier (insurer doctrine) by merely alleging 'delivery of the corn in good order to the defendant, redelivery by the defendant to the plaintiff of the corn in damaged condition and the damages resulting from such deteriorated condition.' Nevertheless, plaintiff, of necessity, agrees that it must prevail, if at all, under the theory of recovery chosen, i.e., negligence. Scott County Milling Company v. Thompson, Mo.App., 255 S.W.2d 121. 'It appears to be settled in this state that, even when the facts will permit a suit against a common carrier as an insurer of freight transported by it, yet, if the pleader alleges negligence, he must stand upon his allegations and prove the negligence alleged or fail.' Ozark Fruit Growers' Ass'n v. St. Louis-San Francisco R. Co., 226 Mo.App. 222, 225, 46 S.W.2d 895, 896. In reviewing this cause as a negligence action, we initially must recognize the duty which defendant, as a common carrier, owed plaintiff. One, among others of which there can be no dispute, is the obligation or duty to make delivery within a reasonable time, or, as expressed by words of the industry and adopted by the courts, 'with reasonable dispatch.' As said in Johnson v. Missouri Pac. R. Co., 211 Mo.App. 564, at 571, 249 S.W. 658 at 660: 'It cannot be doubted, we think, that the duty to transport with reasonable dispatch, or to use due diligence to that end, is as much a part and parcel of the common-law duty of the carrier as is the duty to convey safely.' Mount Arbor Nurseries v. N.Y.C. & St. Louis R. Co., 217 Mo.App. 31, 273 S.W. 410, 414; Howell v. Hines, Mo.App., 236 S.W. 886, 888. Defendant concedes the presence of such a duty. Did it negligently fail to carry it out? To establish that defendant did, the law is established that plaintiff was required to show something more than the delay itself. 'It has been repeatedly held that mere proof of delay, of itself, will not support an inference of negligence on the part of the carrier; but it also has been held that the addition to such proof of very slight evidence of negligence on the part of the carrier will suffice to raise the inference that the delay was negligence.' Holland v. Chicago, R.I. & P. Ry. Co., 139 Mo.App. 702, 713, 123 S.W. 987, 991. As to the required 'slight evidence' presented in addition to the delay, we note the testimony of defendant's harbor supervisor (now retired) at the point of loading. He was asked on cross-examination: 'The motor vessel Ray carrying some other barges and Barge 782, which was loaded along with 814, went down river, left the harbor after 814 was completely loaded, isn't that correct?' His answer was: 'That's correct.' He also testified that defendant and other carriers had reciprocal agreements whereby one might pick up the barges of another if the latter had no towing vessel available. The record further reflects that he testified:

'Q. Were you aware that it (MV--814) sat around up there from October 28th to November 9th?

'A. No, sir.

'Q. You were not aware of that?

'A. No 'Q. Is that a long time for a barge full of corn waiting to be picked up?

'A. It's longer than usual I know.'

In addition, plaintiff offered testimony of an employee of its marine department who testified the usual pickup delay was two to four days. Evidence was offered, reference the delay in Cairo, Illinois, that a tow vessel of defendant (The Valley Transporter) left Cairo, while MV--814 was there, with nonperishable items such as steel which resulted in a further delay of four days at that point. Defendant offered no explanation of the twelve day delay in Minnesota, but it did contend MV--814 remained at Cairo, Illinois, because plaintiff had requested that the corn be tested at that point. Plaintiff had made several inquiries as to the status of the trip during the period involved. We believe plaintiff met the demands of the 'slight' additional evidence test which accepts the fact that generally knowledge of a cause for delay is within the peculiar knowledge of the carrier. Ernest E. Fadler Co. v. Chicago, R.I. & P.R. Co., Mo.App., 261 S.W.2d 394, 398. Since plaintiff made a prima facie case, it was for defendant to account for the unreasonable delay. In addition, we believe the evidence was sufficient to sustain a finding of a causal connection between the unusually long trip and the deterioration of the corn from a No. 3 grade to salvage. Expert witnesses for both parties agreed that corn is a living organism, breathing and producing heat, which will deteriorate at a rate commensurate with its moisture content, lack of oxygen and passage of time. Presumably, the grade of corn involved would determine the time required for a cargo to become salvage. Defendant complains that it was not informed the cargo on MV--814 was graded No. 3, but failed to establish that such a grade was not of a good and marketable quality generally accepted for shipment. Plaintiff...