A. C. L. Haase & Sons Fish Co. v. Merchants' Despatch Transportation Co.
| Decision Date | 02 November 1909 |
| Citation | 122 S.W. 362,143 Mo.App. 42 |
| Parties | A. C. L. HAASE & SONS FISH COMPANY, Respondent, v. THE MERCHANTS' DESPATCH TRANSPORTATION COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Dan'l G. Taylor Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
James R. Van Slyke for appellant.
Wise McNulty & Keefe of counsel.
(1) The bill of lading introduced by plaintiff shows that the goods were to be delivered to the Merchants Despatch Transportation Company at the port of Boston, and by them to be forwarded from Boston to East St. Louis, Ill. The evidence of plaintiff disclosed the fact that the goods were properly forwarded after they were delivered to the Merchants Despatch Transportation Company at Boston, Mass., and, therefore defendant's demurrer to plaintiff's evidence should have been sustained. (2) It was the duty of the court to construe the contract in question, there being no ambiguity in same and no question for the jury to pass upon. It was error, therefore, for the court to instruct the jury with reference to the construction of the contract. Caldwell v. Dickson, 26 Mo. 60; Blanke v. Dunnermann, 67 Mo.App. 591; Edwards v. Smith, Adm'r, 63 Mo 119; Ford v. Dyer, 148 Mo. 528; McClurg v. Whitney, 82 Mo.App. 624. (3) It was error for the trial court in its instructions to the jury to ignore the valid exceptions contained in the bill of lading when plaintiff's suit was based upon said contract, and said contract was introduced in evidence by plaintiff. Levering v. Union T. & I. Co., 42 Mo. 88; Wyrick v. Railway, 74 Mo.App. 406; Railway v. Sloop, 200 Mo. 215; Milling Company v. White Line C. T. Co., 122 Mo. 258. (4) The plaintiff in his pleadings was limited to the particular breach of the contract, to-wit, the delay as the proximate cause of the damage, and was entitled to recover upon no other theory, and must prove this allegation by competent evidence. The plaintiff having failed to introduce evidence that delay caused the damage, it was error for the court to instruct the jury upon this proposition, and allow them to find that the delay did cause the damage without competent evidence of said facts. Standard Mill. Co. v. White Line C. T. Co., 122 Mo. 258; Evans v. Graden, 125 Mo. 72. (5) Where damage results by reason of an exception in the bill of lading, the burden is then upon plaintiff to show the loss or damage resulted by reason of negligence on the part of defendant, said negligence, however, to be limited to the allegation of plaintiff's petition. Hurst v. Railroad, 117 Mo.App. 25; Levering v. Union T. & I. Co., 42 Mo. 88. (6) Where petition alleges a particular breach of the contract as causing damage, and there are valid exceptions in the bill of lading excusing such breach, these exceptions are not invalidated by any act of negligence on the part of the carrier, but only such negligence as results in or causes the alleged breach, and it is error for the court to instruct the jury that defendant is not excused if they were guilty of any act of negligence, and not confining the acts of negligence to those resulting or referring to the alleged breach of the contract. (7) The court erred in striking out parts of appellant's amended answer, because said portion of said answer set forth a valid excuse and defense for the alleged delay, both at common law and under the statutes of the commonwealth of Massachusetts. 5 Am. and Eng. Ency. of Law (2 Ed.), p. 240; 2 Hutchinson on Carriers (3 Ed.), secs. 738, 747; Nickey v. Railway, 35 Mo.App. 79; Landa v. Holck, 129 Mo. 63; Styles v. Davis, 1 Black (U.S.) 101; Adams v. Scott, 104 Mass. 169; Hynds v. Wynn, 71 Iowa 593; Cooley v. Railway, 53 Minn. 327; Walker v. Railroad, 49 Mich. 446.
Schnurmacher & Rassieur for respondents.
(1) The circuit court properly struck out of the answer the defense based on the Massachusetts garnishment proceedings, and on the trial properly excluded evidence in support of such defense, because: (a) The goods in question were not seized or taken into actual custody by the officer, but a mere notice of garnishment was served on George H. Warren and on the American Express Company, who were under no duty, contractual or legal, to plaintiff. (b) The goods were in transit when said garnishees were served, and therefore, on defendant's own theory, the goods were not affected by the garnishment, which can only be binding on the carrier where transportation of property in his possession has not yet commenced. Elliott on Railroads, sec. 1538, p. 2388. Defendant at bar undertook the carriage of the goods from Liverpool to East St. Louis, and the goods were in transit from the time they left Liverpool. (c) The plea of the answer stricken out shows affirmatively that trustee process or garnishment in Massachusetts only protects the carrier who is summoned, respecting goods in his possession. The Massachusetts Act is pleaded specifically to the effect that "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 assignee 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." Having specifically pleaded the statute, the answer then averred, in so many words, that defendant was not in possession of the mackerel and was not made a party to the garnishment proceedings, which ran only against George H. Warren and the American Express Company, strangers to the contract between plaintiff and defendant. Defendant, therefore, while seeking the protection of the Massachusetts Act, did not bring itself within its provisions. (2) Defendant is a common carrier and subject to all the liabilities of a carrier. Kirby v. Express Co., 2 Mo.App. 369; Robinson v. Desp. Co., 45 Iowa 470; Desp. Co. v. Block, 86 Tenn. 392. (3) The loss of goods delivered to a common carrier raises a presumption that the loss was due to the negligence of the carrier. Kirby v. Ex. Co. , 2 Mo.App. 369. Indeed, common carriers are insurers of goods entrusted to them for carriage, and the burden is on them to show that they fully performed their contract; or, that the goods were lost by some excepted peril. Hill v. Sturgeon, 28 Mo. 323; Alexander v. McNally, 112 Mo.App. 563. (4) In an action against a carrier of goods which were delivered to the carrier free from injury and delivered to the consignee injured, the burden is on the carrier to account for the injury. Buddy v. Railway, 20 Mo.App. 206; Nairn v. Railway, 126 Mo.App. 707. (5) The burden of accounting for or proving that the damage to goods in the hands of a common carrier was occasioned by a cause which imposes no liability, is upon the carrier. Davis v. Railway, 89 Mo. 340; Wolf v. Ex. Co., 43 Mo. 421; Read v. Railroad, 60 Mo. 199. Moreover, where the injury to goods occurs from any of the causes excepted by the bill of lading, in order that the carrier may be relieved from liability, it must appear that the exception named was the sole and proximate cause of the damage; otherwise the carrier will be liable. Read v. Railroad, 60 Mo. 199; George v. Railway, 57 Mo.App. 358. (6) The bill of lading acknowledged receipt by defendant, at Liverpool, of the goods in apparent good condition, and proof that they were delivered to plaintiff at East St. Louis in a damaged condition, made out a primafacie case and warranted a verdict for plaintiff, unless defendant satisfied the jury that the damaged condition was due to one or more of the excepted causes mentioned in the bill of lading. This defendant attempted to do by opinion evidence that the barrels were made to leak through rough weather encountered by the SS. Sagamore. But defendant proved too much. Its evidence was that the barrels leaked and were picklestained when the shipment reached Boston, but that the barrels were otherwise in good condition. The proof showed that many were broken on arrival at East St. Louis, and no effort was made by defendant to account for this damage, which must have occurred during the rail transportation between Boston and East St. Louis. The presumption is that this injury was due to the negligence of defendant or of its agencies. (7) Counsel for defendant err in stating that the goods in question were to be delivered to defendant at Boston and by it to be forwarded to East St. Louis. Defendant undertook the carriage of the goods from Liverpool to Boston by the SS. Sagamore and from Boston to East St. Louis by rail. As to what its traffic arrangements were with the owners of the vessel and with the railroad or railroads, enabling it to perform its undertaking, plaintiff is not concerned.
Plaintiff recovered judgment for damage to a cargo of pickled mackerel shipped from Liverpool, England, and consigned to defendant in East St. Louis, Illinois. 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 de-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...
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