Carder v. Atchison, Topeka & Santa Fe Railway Co.

• Decision Date: 04 February 1913
• Citation: 153 S.W. 517,170 Mo.App. 698
• Parties: CALVIN CARDER, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Appellant
• Court: Missouri Court of Appeals

153 S.W. 517

170 Mo.App. 698

CALVIN CARDER, Respondent, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Appellant

Court of Appeals of Missouri, St. Louis

February 4, 1913

Appeal from Scotland Circuit Court.--Hon. Chas. D. Stewart, Judge.

REVERSED.

Judgment reversed.

Thomas R. Morrow, James P. Gilmore, N. M. Pettingill and John H Lathrop for appellant.

(1) Where a shipment is consigned direct to the consignee, the latter is presumed to be the owner. Garden Cultivator v Railroad, 64 Mo.App. 305; Scharff v. Meyer, 133 Mo. 428; Bank v. Ewing, 107 Mo.App. 178; Cotton Co. v. Red River, 30 So. 303; McCauley v Davidson, 13 Minn. 162; Frank v. Railroad, 9 Pa. S.Ct. 129. (2) If in fact the consignee had been the owner, as it was presumed to be, the carrier would have been liable had it diverted the shipment. Therefore, it had a right to demand substantial proof of ownership in the consignor before making a diversion. Smith v. Railroad, 145 Mo.App. 395; Moving Co. v. Railroad, 146 Mo.App. 224; Bank v. Railroad, 135 Mo.App. 74; Grain Co. v. Railroad, 176 Mo. 480. (3) The information which was given the carrier and the other circumstances in the case were not such as would require the carrier to make a diversion, thereby taking the goods from the consignee which was apparently the owner. Ryan v. Railroad, 95 N.W. 758; Armentrout v. Railroad, 1 Mo.App. 158. (4) The amended statement filed in the circuit court attempted to introduce a new cause of action, or new ground of liability, and the plaintiff should not be allowed to recover on it. R. S. 1909, secs. 7585, 7587.

J. W. Waters and Smoot & Smoot for respondents.

(1) So long as the bill of lading representing the goods is in the hands of the person to whom it was originally issued, there could of course be no objection to the substitution of another bill by agreement of the parties. 6 Cyc. page 425, subdivision 4. A carrier, like any other bailee, must respect the apparent ownership or the shipper from whom he received the possession and it cannot deny the shipper's right to the goods, unless in case the transaction is such as to import a transfer of title to the consignee. Although, as a matter of fact, the shipper is not the real owner. 6 Cyc. 434, subdivision b; Railroad v. McComas, 33 Ill. 185; Railroad v. Schwartz, 11 Ill.App. 482; Bank v. Railroad, 158 Mo.App. 519; Lord Bushnel Co. v. Railroad, 155 Mo.App. 375. (2) It is too late now for the appellant to make any contention over the amendment. Bank v. Crump, 116 Mo.App. 371.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action by plaintiff, respondent here, against the appellant railway company, for loss incurred by plaintiff growing out of the failure of defendant to divert a shipment of cattle while en route, as requested by plaintiff, the shipper.

It appears that on April 14, 1909, Calvin Carder, the plaintiff, made a shipment of cattle from Rutledge, Missouri, a shipping point on the line of defendant's railway, to Chicago, Illinois, over defendant's line of road. The shipment was consigned direct to the National Live Stock Commission Company at Chicago; the defendant issuing therefor an ordinary bill of lading to the said National Live Stock Commission Company as consignee. Rutledge is a small town about forty-four miles west of Fort Madison, Iowa, through which defendant's line of railway extends.

The plaintiff accompanied the shipment of stock, and a short time before reaching a station called Shopton, which is some two miles west of Fort Madison and the terminal of the latter station, the plaintiff met one Payne, a cattle buyer, with whom he negotiated for the sale of the cattle. Payne lived at Monmouth, Illinois, a point off of defendant's line of railway and on the line of the Iowa Central Railway Company. Upon arrival at Shopton, and while the train waited there, the cattle were transferred from one car to another because, as it appears, plaintiff claimed they were too crowded in the car and that he wanted them put into a larger car or into two cars. While the car was standing on the siding, and apparently before the cattle were changed to another car, plaintiff and Payne agreed upon terms of sale of the cattle by plaintiff to Payne, the latter telling plaintiff to have the cattle rebilled to Monmouth, Illinois. Before the train left Shopton, plaintiff inquired about having the cattle rebilled to Payne at Monmouth, and was told he would have to see the agent at Fort Madison. The yard master at Shopton telephoned the agent at Fort Madison saying that there was a man who wanted to divert some cattle and that they would "be up there in a minute or so." The shipment was, at that time, on defendant's train No. 20 which, as the evidence shows, left Shopton about five o'clock, reaching the depot at Fort Madison about five minutes later. The train made an ordinary passenger stop of one or two minutes. It appears from the evidence that the point of junction of defendant's line of railroad with that of the Iowa Central, over which the shipment would have had to go had it been diverted, was a town named Nemo, about forty-two miles east of Fort Madison; so that whether diverted or not the shipment would necessarily pass through Fort Madison.

Upon the arrival at the station at Fort Madison, and while train No. 20 was standing in front of this station, the conductor thereof saw the agent, one Ilette, and told him that there was a man on this train who wanted to divert a shipment of cattle. The plaintiff, accompanied by Payne, appeared at the window of the station and demanded of the agent that he rebill the cattle to Payne at Monmouth, Illinois, declaring that he, the plaintiff, was the owner of the cattle and that he had agreed to sell them to Payne. Upon inquiry the agent learned that the cattle were consigned direct to the National Live Stock Commission Company of Chicago as consignee. There is no evidence that plaintiff exhibited to defendant's agent the bill of lading; nor in fact is there any evidence that plaintiff then had the bill of lading in his possession, except the testimony of Payne, whose recollection of the facts did not at the trial appear to be very distinct, and who, being asked whether he had seen the bill of lading, said: "Yes, I believe I did" . . . "I think he showed it to me." The agent was not acquainted with plaintiff Carder although he had seen his name on waybills, and did not know whether or not plaintiff was in fact the owner of the cattle. There was no evidence that the station agent was acquainted with Payne who accompanied Carder.

The evidence shows that the agent told the plaintiff that he could not, under the circumstances, divert the shipment, but that the matter would have to be submitted to defendant's auditor, and that this would be done if information could be secured before the train reached Nemo, the junction point mentioned above. The evidence showed that the running time of this train from Fort Madison to Nemo was an hour and forty minutes. It appears that the agent told plaintiff that he would endeavor to communicate with the agent at Rutledge, the point of origin of the shipment, in order to determine, if possible, whether the plaintiff was the actual owner of the cattle.

The train left Fort Madison, with the car of cattle, and with plaintiff and Payne on the train. It appears that defendant's agent at Fort Madison, with whom plaintiff had conversed, then endeavored to reach the agent or operator at Rutledge by telegraph, but was unable to get any answer from the operator there. It was after five o'clock and, according to the testimony of Ilette, defendant's said agent, there was no operator at Rutledge from five o'clock p. m. until ten o'clock p. m. Defendant's agent at Fort Madison, not obtaining any information, no steps were taken to divert the shipment, and the same went on to Chicago, its original destination, accompanied by the plaintiff. It was there delivered to the National Live Stock Commission Company, the original consignee, and the latter sold the cattle for a sum less than the price which Payne had agreed to pay plaintiff for them, resulting in the net loss to plaintiff of $ 111.43.

The suit was originally begun before a justice of the peace, where plaintiff had judgment, from which judgment defendant duly perfected its appeal to the circuit court, where the cause was tried before the court and a jury. Before going to trial in the circuit court, the plaintiff filed an amended statement differing somewhat from the statement filed before the justice, but it will not be necessary to set out these statements. Upon the trial in the circuit court, at the close of plaintiff's evidence, the defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court. At the close of all the evidence defendant again offered a like instruction, which was likewise refused. The court gave three instructions requested by plaintiff and refused those requested by defendant. It is unnecessary to set out these instructions. There was a verdict for plaintiff for the sum of $ 111.43, and judgment entered accordingly. After an unsuccessful motion for a new trial defendant has appealed to this court.

We will say at the outset that the well-known doctrine of stoppage in transitu is not here involved, for the reason that plaintiff does not invoke this doctrine, and for the further reason that the right did not exist, inasmuch as the consignee, the National Live Stock Commission Company, was not insolvent, according to plaintiff's own testimony. [Smith Company v. Railroad, 145 Mo.App. 394, 122 S.W. 342; Benjamin on Sales (6 Ed. 1892), p. 808.]

Appellant here concedes the right of the true...