Carson Union May Stern Co. v. Pennsylvania R. Co.

• Decision Date: 17 October 1967
• Docket Number: No. 32514,32514
• Citation: 421 S.W.2d 540
• Parties: CARSON UNION MAY STERN COMPANY, a Corporation, Plaintiff-Respondent, v. The PENNSYLVANIA RAILROAD COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 540

421 S.W.2d 540

CARSON UNION MAY STERN COMPANY, a Corporation, Plaintiff-Respondent, v. The PENNSYLVANIA RAILROAD COMPANY, a Corporation, Defendant-Appellant.

No. 32514.

St. Louis Court of Appeals, Missouri.

Oct. 17, 1967.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 28, 1967.

Alan E. Popkin, Coburn, Croft & Kohn, St. Louis, for appellant.

Max Sigoloff, St. Louis, for respondent.

WOLFE, Judge.

This action originated in Magistrate Court in the City of St. Louis. The Petition was in two counts. The first count sought to recover for the value of goods converted by the defendant to its own use. The second count sought recovery from the defendant for damage to the same goods in shipment. There was a judgment for the defendant in the Magistrate Court on both counts and the plaintiff appealed. The trial, upon appeal, was to the court and the Circuit Judge entered a judgment for the defendant on both counts of the Petition. In due time the plaintiff filed a motion to set aside the judgment in favor of the defendant and enter a judgment for the plaintiff. The court sustained the motion as to Count I of the Petition and overruled it as to Count II. A judgment was then entered for the plaintiff on the theory of conversion on Count I and the defendant prosecutes this appeal.

The freight shipment to the plaintiff consisted of 225 steel cabinets. About two days after receiving delivery of cabinets the plaintiff's manager, a Mr. Fihn, directed that some of the cabinets be removed from the corrugated packing cases in which they were shipped. When this was done it was found that some of the cabinets were damaged. Fihn testified that there were places on some of the cartons that were pressed in or slightly crushed. Twenty-three of the cabinets were found to be damaged in that some steel channels, spot welded to the inside of the cabinets as drawer slides, had broken loose.

Fihn testified that after a conversation with the claim agent, 'that they were allowing the claim,' he told them to pick up the damages cabinets and on January 6, 1964 a claim was filed with the defendant for $595.47. On January 7, 1964 the plaintiff sent to the defendant the following letter:

'Pennsylvania Railroad

Freight Claim Department

East St. Louis, Illinois

Gentlemen:

'In re car #30720, shipper Parker Allen, you have made inspection of 23 #130 cabinet bases at our warehouse, 904 So. 14th Street.

You were to arrange to pick up these damaged cabinets out of the full car shipment, and we were to file claim. Please arrange to have these picked up immediately.

Yours truly,

CARSON UNION MAY STERN'

After receipt of the letter the defendant had the twenty-three damaged cabinets picked up on Jan. 28 by a salvage company and Mr. Fihn wrote to defendant the following letter:

'Pennsylvania RR

Room 200--15--North 32nd Street

Philadelphia, 4, Pennsylvania

In re: Claim 413--00031

Attention: W. D. Hamilton, Manager Freight Claims Dept.

Dear Mr. Hamilton:

In re claim 413--00031, your Mr. Ross phoned today and stated that you desired to deny our claim.

Our warehouse informs me that this is incorrect, that they had spoken to Mr. Ross prior to this time, showing them part of the claim, and at that time, your Mr. Ross told them to open up every one of the units and considerable time elapsed before they had them all opened, and then they called him to come back and claim was filed.

Your Mr. Ross, representing your company, acknowledged the claim and waived all rights when he arranged to have the merchandise picked up, and the merchandise is in the hands of the Salvage Company. Consequently, we must ask that you do honor and take care of this claim of Five Hundred, Ninety-Five and 47/100 ($595.47) immediately, because we have paid the factory for this goods.

May we hear from you immediately, advising that payment will be forthcoming?

Respectfully yours,

CARSON MAY STERN CO.

A. I. FIHN'

On February 20 the defendant railroad sent the following in reply:

'Carson May Stern

11th & Olive

St. Louis, Mo.

Your file: Jan. 6, 1964

Gentlemen:

A thorough investigation of the transportation records reveals no evidence of improper handling of this shipment on the part of the carriers. The shipment was delivered to the consignee in good condition and request for inspection of the property was not received within fifteen days after date of delivery.

Under the circumstances, carrier liability does not exist and your claim is respectfully disallowed.

However, the property was sold by the carrier for account of the owner for $93.50. We are sending you our payment voucher for that amount, which may be accepted by you without prejudice to your right to further payment in the event carrier liability is found.

Yours very truly,

s/ W. D. Hamilton

W. D. Hamilton

Manager, Freight Claims'

Mr. Fihn testified that the plaintiff at no time authorized the sale of the cabinets. He said that the cabinets could have been repaired for a small sum and that they were worth $20.00 each at the time defendant picked them up.

The claim agent testifying on behalf of the defendant stated that the cabinets were not damaged by the railroad. He stated that he had the cabinets picked up because 'The company requested me to pick them up, it's the relationship between the company, the consignee and the railroad, and we have to make every effort to do these things, and we were told to pick them up and I had no other choice.'

The foregoing...