Burrell Collins Brokerage Co. v. Hines

• Decision Date: 07 March 1921
• Docket Number: No. 13864.,13864.
• Citation: 230 S.W. 371,206 Mo. App. 669
• Parties: BURREL COLLINS BROKERAGE CO. v. HINES, Director General.
• Court: Missouri Court of Appeals

230 S.W. 371

206 Mo. App. 669

BURREL COLLINS BROKERAGE CO. v. HINES, Director General.

No. 13864.

Kansas City Court of Appeals. Missouri.

March 7, 1921.

Rehearing Denied May 2, 1921.

Appeal from Circuit Court, Jackson County O. A. Lucas, Judge.

Action by the Burrel Collins Brokerage Company against W. D. Hines as Director General, in control of the Missouri Pacific Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remended.

Lebrecht, Kasper & Barber, of Kansas City, for appellant.

Edw. J. White, of St. Louis, and Thos. Hackney and Leslie A. Welch, both of Kansas City, for respondent.

ARNOLD, J.

This is an action in conversion. The petition was filed in two counts— the first being based on an action in conversion, and the second on an action in tort for damages; both counts covering the same transaction. At the close of plaintiff's evidence the second count was dismissed, and the case proceeded on the first.

The action arises out of a shipment of a carload of apples originating at Attica, N. Y., and consigned to plaintiff at Kansas City, Mo. The apples were shipped in bulk in a box car, and were received at Kansas City and placed on the team tracks of the Missouri Pacific Railroad Company at the foot of Grand avenue, on either the 15th or 16th of November, 1918, and consignee notified by the railroad company. The apples were inspected by plaintiff and found to be in good merchantable condition, as shown by the testimony of plaintiff.

On November 19, 1918, plaintiff ordered said shipment diverted to Solomon, Kan., to move via the Union Pacific Railroad, a connecting carrier of the Missouri Pacific Railroad at Kansas City. The diversion order was given to the Grand avenue office of the Missouri Pacific, was received about 3:35 p. m. November 19th, and accepted by defendant's agents at that office. The defendant railroad company offered the shipment to the Union Pacific Railroad for transportation to Solomon, Kan., but it was refused by the latter company because of an embargo (of which plaintiff had no notice) existing against the acceptance of perishable freight loaded in box cars.

An agent of the defendant railroad company, on November 22, or 23, 1918, notified plaintiff of the refusal by the Union Pacific Railroad Company to accept the shipment by reason of said embargo, and suggested defendant's willingness to supply a refrigerator car for plaintiff's use in transferring the apples thereto from the box car in which they had been shipped, and defendant further advised that if plaintiff desired, defendant would execute the transfer of the apples at plaintiff's expense. Plaintiff refused to assume the expense of the transfer, and stated that it would send a man to superintend the transfer. Defendant refused this offer.

On November 27, 1918, defendant company sold the apples, deducting the amount of freight charges due carrier for the transportation of the shipment from Attica, N. Y., to Kansas City, Mo., and tendered the balance to plaintiff in full settlement, which tender was refused. The apples were sold for $750, the charges against the shipment were $304.40, and the balance was the basis of the tender.

The petition, after alleging formal matters about which there is no dispute, charged that defendant accepted said diversion for the purpose of transporting said car to Solomon, Kan., but that defendant, contrary to the rights of plaintiff, illegally and unlawfully converted said apples to its own use, and that said carload of apples was of the value of $1,279.46, and prayed judgment therefor, together with interest and costs.

The answer was a general denial, and as a further defense avers that the carload of apples in question was received at Kansas City on November 15, 1918, and set at the Grand avenue station team track of defendant company, the usual and customary place for unloading cars consigned to plaintiff, and plaintiff was so notified; that plaintiff did not unload said car but permitted it to remain on said track until November 19, 1918, when telephone directions were given by plaintiff to divert the shipment to Solomon, Kan., over the Union Pacific Railroad; that the operators of defendant company attempted to comply with the instructions of plaintiff and promptly switched the said car to the tracks of the Union Pacific Railroad company at Kansas City, Mo., and tendered same to the operators thereof for transportation and delivery to Solomon, Kan., but it was by them refused, for the reason that there was at the time in effect over the line of the Union Pacific Railroad company an embargo against all perishable commodities not loaded in refrigerator cars, and avers that said apples were not loaded in a refrigerator car.

Further answering, defendant states that on November 21, 1918, and again on November 22, 1918, plaintiff was notified by defendant that said shipment had been tendered the connecting carrier, and been refused on account of said embargo, and that thereupon defendant tendered possession of said car to plaintiff, and that it was subject to plaintiff's disposition; that defendant would furnish plaintiff a refrigerator car for transfer of the apples by plaintiff, or defendant would transfer them at plaintiff's expense; and avers that plaintiff wrongfully refused to accept and transfer the contents of the car and refused to dispose of the contents thereof.

Defendant further says: There was at the time a tariff in force and effect, duly filed, published, and approved by the Interstate Commerce Commission, applicable to the lines of the Missouri Pacific Railroad Company and the operation thereof,...