A. C. L. Haase & Sons Fish Co. v. Merchants' Despatch T. Co.

• Decision Date: 02 November 1909
• Parties: A. C. L. HAASE & SONS FISH CO. v. MERCHANTS' DESPATCH TRANSP. CO.
• Court: Missouri Court of Appeals

122 S.W. 362

143 Mo. App. 42

A. C. L. HAASE & SONS FISH CO. v. MERCHANTS' DESPATCH TRANSP. CO.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

1. APPEAL AND ERROR (§ 171) — ADHERENCE TO ISSUES BELOW.

Where an action against a carrier was tried on the theory of liability for negligent delay in transporting freight, the common-law liability of the carrier for delivery in damaged condition will not be considered on appeal.

2. CARRIERS (§ 177) — LIABILITY OF INITIAL CARRIER.

A carrier issuing a through bill of lading, by which it agrees to transport freight from the initial point to destination part of the distance by a ship and the balance by rail, becomes thereby a carrier for the entire route, and is liable for the negligence of any carrier transporting the property under an arrangement with it.

3. CARRIERS (§ 99) — DELAY OF SHIPMENT — LIABILITY.

A statute providing that, when a carrier summoned as garnishee in an action has goods in its possession shipped by or consigned to defendant in the action, it shall not be liable for its failure to transport the goods until it is discharged, exonerates the carrier garnished in an action against the shipper or consignee from liability for delay caused by the garnishment, but a carrier merely alleging that a third person was in possession of the goods at the time he was garnished and omitting to allege any fact showing that the possession of the third person was the possession of the carrier is not within the protection of the statute.

4. PLEADING (§ 311) — EXHIBITS.

An exhibit attached to a pleading is not a part thereof, and an answer which merely alleges that a matter was attached to the petition as an exhibit does not make the same a part of the answer.

5. CARRIERS (§ 156) — CARRIAGE OF FREIGHT — BILL OF LADING — LIABILITY.

Proof that brine had run off fish shipped in barrels, and that the barrels during transportation had been punctured, and that the fish were injured thereby, did not prove a leakage within the bill of lading, relieving the carrier from liability for damages caused by leakage.

6. CARRIERS (§ 104) — DELAY IN TRANSPORTATION — NEGLIGENCE — BURDEN OF PROOF.

One suing a carrier for negligent delay in transporting freight must prove negligence and the consequent damage, and the mere fact that the freight was shipped in apparently good order and properly packed, and was in a deteriorated condition when delivered after a delay, is not sufficient to require the carrier to show that it was not negligent.

Appeal from St. Louis Circuit Court; Daniel C. Taylor, Judge.

Action by the A. C. L. Haase & Sons Fish Company against the Merchants' Despatch Transportation Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff recovered judgment for damage to a cargo of pickled mackerel, shipped from Liverpool, England, and consigned to defendant in East St. Louis, Ill. The mackerel were purchased in the north of Ireland by John Murray, an agent of defendant, were shipped in barrels by the steamship Sagamore from Liverpool to Boston, and thence transported by rail to East St. Louis. There were 303 barrels of mackerel, and the petition avers defendant, a transportation company, undertook, for a consideration paid by plaintiff, to carry them from Liverpool to Boston, and therefrom by rail to East St. Louis, within a reasonable time after December 21, 1905, the date defendant received the fish in Liverpool for transportation; that defendant carried the cargo to Boston, where it arrived January 3, 1906, and it then became defendant's business to transport it to East St. Louis, which would require four to six days, but, in disregard of its duty, defendant failed to deliver the fish until late in January or early in February, or four weeks later than a reasonable time. It is further averred that, in consequence of the long delay in transporting and delivering the fish at East St Louis, part of them became spoiled and deteriorated, some of the barrels in which they were packed were broken in transit, and the brine escaped from them in consequence of the length of time consumed in transportation; that the market value of mackerel depreciated between the early part of January, when the fish in question should have arrived in St. Louis, and the latter part of January or early in February, when they did arrive; that, by reason of those matters, plaintiff had sustained damage in the sum of $909.75, for which judgment was asked. The answer originally filed, besides a general denial, contains a special defense of the following tenor: Whatever delay occurred in the transportation of the fish to destination was caused by their being attached under process of law issued out of the municipal court of the city of Boston, Mass., in a suit brought by trustee process (i. e., garnishment) by Thomas Woodward, plaintiff, against John Murray, defendant, Geo. H. Warren and the American Express Company, trustees, the said writ of attachment having been issued January 3, 1906, and duly served on said Warren and the express company, returnable on January 13, 1906, to said municipal court, which is one of record and had jurisdiction of the subject-matter of the action and of the parties; that under said writ so issued the fish were seized by an officer having authority to do so, as the property of John Murray, of county Clare, Ireland, who was the shipper of the goods. The seizure occurred while the property was in possession of Geo. H. Warren, doing business as Warren & Co., and the owner of the steamship Sagamore, in which the fish had been carried across the Atlantic; that plaintiff was notified of the institution of the said suit in the municipal court of Boston, of the seizure of the property, and plaintiff declined to appear in the cause or defend it; that the fish at the time of the commencement of said suit and attachment were in the possession of Warren and mostly in the hold of the steamship Sagamore, but partly on the dock in the city of Boston, and the attachment was levied on said goods before they were taken from said hold and dock, and before they could be delivered by Warren to defendant, as required by the bill of lading. None of the fish were turned over to defendant by Warren & Co. until January 24, 1906, and, as soon as they were, defendant transported them without delay to East St. Louis, and delivered them to plaintiff; that defendant was not made a party to the suit above described in the Boston municipal court; that there was in force in Massachusetts at the time the suit was instituted a statute of said state, as follows: "That all personal actions except actions for tort, for malicious prosecution or for libel or for assault and battery or actions of replevin, may be commenced by a trustee process, and any person or corporation may be summoned as trustee of defendant therein, but a person who is not an inhabitant of the commonwealth or a corporation which is not established under the laws shall not be summoned, unless he or it has an established place of business in the commonwealth." Rev. Laws, c. 189, § 1. There was also in force in Massachusetts an act (Acts 1905, p. 241, c. 324) which is as follows: "Provided, when a common carrier summoned as trustee in an action at law, has in his possession or its possession, goods shipped by or consigned to the defendant in such an action, such carrier, in the absence of collusion on his or its part, shall not be liable to the owner or consignee by reason of his or its failure to transport and deliver the said goods until the attachment is dissolved or the carrier is discharged as trustee." It was further averred Geo. H. Warren and the American Express Company were common carriers in the commonwealth of Massachusetts, had established places of business there, and were summoned in said suit by virtue of its laws. The foregoing special defense was struck out on motion of plaintiff, and an exception was saved to the ruling. Another special defense was based on the provisions in the bill of lading, purporting to exempt defendant or any carrier handling the goods from liability for loss or damage to them before arrival at the port of Boston, due to causes beyond the control of the carrier, or unless claim was made for the damage or loss while the goods were in the actual custody of the carrier; further providing no common carrier should be liable for loss or damage caused by shrinkage, leakage, or breakage, or packing the goods in packages of insufficient size or strength; also claiming the benefit of other exemptions in the bill of lading relating to losses subsequent to the arrival of the merchandise at the port of Boston, which said no carrier or company in possession of the property should be liable for loss...