Campbell v. A.B.C. Storage & Van Co.

• Decision Date: 01 March 1915
• Citation: 174 S.W. 140,187 Mo.App. 565
• Parties: LENA E. CAMPBELL, Respondent, v. A. B. C. STORAGE & VAN CO., a Corporation, Appellant
• Court: Kansas Court of Appeals

174 S.W. 140

187 Mo.App. 565

LENA E. CAMPBELL, Respondent, v. A. B. C. STORAGE & VAN CO., a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

March 1, 1915

Appeal from Jackson Circuit Court.--Hon. Daniel E. Bird, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

McCune Harding, Brown & Murphy, W. B. Brown and Blatchford Downing for appellant.

T. A Frank Jones for respondent.

(1) Defendant was entitled to a lien, even though defendant be a private carrier. 5 Am. & Eng. Ency. of Law, 402; 1 Hutchinson on Carriers, sec. 46; 1 Jones on Liens, sec. 276; 2 Kent's Comm*., p. 635; 1 Hutchinson on Carriers, 150-799; 1 Wyman on Public Service Corporations, secs. 430-431; Express Co. v. U. S. Express Co., 88 F. 659-662; Case Plow Works v. Union Iron Works, 56 Mo.App. 1; Devereux v. Fleming, 53 F. 401; Wyckofe v Southern Hotel Co., 24 Mo.App. 391; 1911 Mo. Session Laws, p. 437, sec. 27. (2) Defendant was a common carrier and accordingly entitled to a lien. Collier v. Storage & Moving Co., 147 Mo.App. 700, 721; 1 Wyman on Public Service Corporations, sec. 239; Robinson v. Kennedy, 2 Dana 430; 1911 Mo. Session Laws, p. 437, sec. 27.

OPINION

TRIMBLE, J.

--The question presented in this appeal is whether or not a mover of furniture has a lien upon articles of that character transported from one place of the owner's residence to another.

Plaintiff employed defendant to move certain books, furniture and household effects from one place in the city to another. There was no special contract nor lien provided for therein. Defendant moved most of the articles forming the subject of the contract and delivered them at the place specified. The last of said articles to be moved were not delivered to plaintiff at the place specified but were tendered to her there on condition that she pay the sum of $ 15 as defendant's compensation for moving all of the goods. For some reason, not disclosed by the record, plaintiff refused to pay, and defendant held the undelivered goods claiming a lien on them for the amount due on the contract.

Not being able to get possession of the goods, plaintiff brought suit in a justice court and recovered judgment. Defendant appealed to the circuit court, where the above facts were fully set out in an answer filed by it, and the statement was therein made that it has no claim on said goods other than by virtue of the lien it claims for transporting the same. Plaintiff demurred to this answer and was sustained, and defendant, declining to plead further, stood on its demurrer and appealed.

Under any view that may be taken of the pleading, the result is the same, i. e., a question of law is raised as to whether a lien exists or not.

The answer to this question would seem to turn upon whether defendant is merely a private carrier, or is a common carrier. If defendant is the former it has no lien for its services. It is true a number of authorities say that, on principle, a private carrier should have a lien. [5 Am. & Eng. Ency. of Law (2 Ed.), 402; Hutchinson on Carriers (3 Ed.), sec. 46; 1 Jones on Liens, sec. 276.] But they also say that the decisions are to the effect that he has none. [Fuller v. Bradley, 25 Pa. 120; Piquet v. McKay, 1 Blackf. (Ind.) 465, l. c. 466; Thompson v. New York Storage Co., 97 Mo.App. 135, 70 S.W. 938; 1 Jones on Liens, sec. 276.] A lien of the nature involved in this case is a particular lien, being the right of an agent to retain personal property only for a charge on account of labor bestowed upon it. According to Chancellor KENT it probably originated in those cases wherein, on account of the public nature of the employment, the one engaging therein was bound to accept the goods and could not refuse to perform the services required. [2 Kent's Comm. Star page 635.] And although he says the right of lien is not now confined to those who are obliged to receive the goods, and the general rule is that "every bailee for hire, who by his labor and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges," still the instances cited are confined to those wherein the labor is expended upon the property itself and has rendered it intrinsically more valuable. Liens in these cases arose by virtue of the common law. If there are any other examples cited, the lien in them arose by usage of trade which is one of the three ways such liens are created. [Kent's Comm. Star page 634.] There is no usage of trade nor special agreement of parties by which a lien can be claimed herein for moving the furniture. So that the fact that the common law gave no lien for this kind of work is a sufficient reason on which to base a refusal to extend that right in these later times. If, as appellant contends, the policy of the law, as indicated by statutes, is in favor of it, then let the extension of such right come through statutory channels rather than by judicial announcement. So that we say a mere private carrier has no lien upon the goods carried by him.

Is defendant a common carrier? If so, it is well settled that it has a lien on the goods transported by it for the payment of its lawful charges for such carriage.

Whether a party is or is not a common carrier depends, in the last analysis, upon the facts concerning the business and the way it is conducted. If the carrier carries goods as a public employment, undertaking to carry goods for persons generally, and holds himself out to the public as ready to engage in that business as a business, and not as a casual occupation, he comes within the definition of a common carrier. [Story on Bailments, sec. 495.] The question whether one is a common carrier "can sometimes be known only by particular proof of how his business was conducted and what professions he made to the public regarding it. [Thompson v. New York Storage Co., 97 Mo.App. 135, 70 S.W. 938; Schloss v. Wood, 11 Colo. 287, 17 P. 910.] "Anyone who holds himself out to the public as ready to undertake for hire or reward the transportation of goods from place to place, and so invites custom of the public, is in the estimation of the law a common carrier." [Lloyd v. Haugh, 223 Pa. 148, l. c. 154.] A wagoner who follows hauling for a livelihood and advertises to the world that he will take goods of all persons indifferently for transportation from place to place is a common carrier. [Fish v. Chapman, 2 Ga. 349, l. c. 354.] "According to the most approved definition, a common carrier is one who undertakes for hire or reward to transport the goods of all such as choose to employ him, from place to place. Draymen, cartmen and porters who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the definition. So also does the driver of a slide with an ox team. The mode of transporting is immaterial." [Robertson v. Kennedy, 32 Ky. 430, l. c. 431.] One who owns a line of licensed vehicles by which he undertakes to transport merchandise from one part of the city to another for the public generally is a common carrier. [Farley v. Lavary, 107 Ky. 523, 54 S.W. 840; Caye v. Pool's Assignee, 108 Ky. 124, 55 S.W. 887; Lawson v. Judge, 175 Mich. 375; Philleo v. Sanford, 17 Tex. 227; Doty v. Strong, 40 Am. Dec. 773.] "Truckmen, wagoners, cartmen and porters who undertake to carry goods for hire as a common employment in a city or from one town to another, are common carriers. It is not necessary that the exclusive business of the parties shall be carrying. Where a person whose principal pursuit is farming solicits goods to be carried to the market town in his wagon on certain occasions, he makes himself a common carrier for those who employ him. The circumstance that the defendants had no regular tariff of charges for their work, but that a special price was fixed by agreement, does not change the relation. The necessity for a different charge in each case arises, of course, out of the difference in labor in handling articles of great bulk. The charge in each case may be proportioned to the risk assumed and commensurate with the carrier's responsibility as such. A common carrier is one who, by virtue of his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to employ him, and every one who undertakes to carry for compensation the goods of all persons indifferently, is, as to liability, to be deemed a common carrier." [Jackson, etc., Works v....