Central American S. S. Co. v. Mobile & O. R. Co.

• Decision Date: 16 May 1910
• Citation: 144 Mo. App. 43,128 S.W. 822
• Court: Missouri Court of Appeals
• Parties: CENTRAL AMERICAN S. S. CO. v. MOBILE & O. R. CO. et al.

128 S.W. 822

144 Mo. App. 43

CENTRAL AMERICAN S. S. CO. v. MOBILE & O. R. CO. et al.

Kansas City Court of Appeals. Missouri.

May 16, 1910.

1. CARRIERS (§ 76)—TRANSPORTATION OF GOODS—ACTION FOR LOSS—PARTIES.

The consignor may properly bring suit on a transportation contract, whether he be the owner or not, though he cannot sue ex delicto for breach of duty by the carrier.

2. CARRIERS (§ 94)—TRANSPORTATION OF GOODS—ACTIONS FOR LOSS—NATURE AND FORM.

A petition alleging that defendant carrier issued a bill of lading to plaintiff's agents, agreeing to carry for hire and to deliver the goods to the consignees, and that they violated their agreement by failing to deliver them to the consignees or to plaintiff, is founded on contract, rather than on breach of the common-law duty of the carrier.

3. PLEADING (§ 49)—PETITION—ALLEGATIONS AS TO NATURE OF ACTION.

Under Rev. St. 1899, § 539 (Ann. St. 1906, p. 574), providing that there is but one form of civil action, and section 592 (page 612), requiring the pleader to give a plain and concise statement of the facts constituting his cause of action, the petition need not state the nature of the action, but that will be determined from the facts averred.

4. ESTOPPEL (§ 68)—EQUITABLE ESTOPPEL— POSITION IN JUDICIAL PROCEEDING.

In an action against carriers for the failure to deliver goods, the initial carrier cannot urge that the rights of the parties are not measured by the contract of carriage, where it pleads the contract and invokes its terms to escape liability.

5. CARRIERS (§ 180)—TRANSPORTATION OF GOODS—CONNECTING CARRIERS—LIMITATION OF LIABILITY.

Where a carrier by bill of lading agrees to carry goods to the destination if on its road, or, if the destination is not on its road and the company guarantees a through rate to destination, then it agrees to deliver to the other carrier, but does not agree to carry to any point beyond its own line, or be responsible beyond its own line, and guarantees a certain rate to a point beyond its own line, the contract is one for through transportation, and the carrier cannot limit its liability for negligence of the connecting carrier.

6. CARRIERS (§ 175)—CARRIAGE OF GOODS— CONNECTING CARRIERS—LIABILITY OF INITIAL CARRIER.

Where the cause of misdelivery of goods by a connecting carrier was a mistake of the initial carrier in notifying the connecting carrier as to the name of the consignee, the initial carrier is liable for the loss.

7. CARRIERS (§ 175)—CARRIAGE OF GOODS— CONNECTING CARRIERS—LIABILITY OF INITIAL CARRIER.

Where a bill of lading authorizes the delivery of goods to the consignee without its production, misdelivery by the connecting carrier to the party named as consignee by the initial carrier without the production of the bill of lading does not avoid the liability of the initial carrier to the consignor.

8. CARRIERS (§ 175)—CARRIAGE OF GOODS— CONNECTING CARRIERS—LIABILITY.

Though the fault which caused the misdelivery of goods by a connecting carrier was wholly that of the initial carrier, they are liable to the consignor jointly; their relation being in the nature of a partnership.

9. CARRIERS (§ 175)—CARRIAGE OF GOODS— CONNECTING CARRIERS—LIABILITY.

That both the initial and connecting carriers are sued, where the fault is solely that of the initial carrier, does not relieve the connecting carrier of liability.

Appeal from Circuit Court, Jackson County; Andrew F. Evans, Special Judge.

Action by the Central American Steamship Company against the Mobile & Ohio Railroad Company and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

W. F. Evans, R. P. & C. B. Williams, and Dana, Cowherd & Ingraham, for appellants. Karnes, New & Krauthoff for respondent.

JOHNSON, J.

Plaintiff sued the Mobile & Ohio Railroad Company (hereinafter referred to as the initial carrier) and the St. Louis & San Francisco Railroad Company (referred to as the connecting carrier) to recover the value of a car load of bananas delivered to the initial carrier at Mobile, Ala. for transportation to Kansas City, and for delivery at that place to W. H. Wells & Son, the consignees named in the bill of lading. Trial to the court, without the aid of a jury, resulted in a judgment for plaintiff against both defendants. An appeal was taken by each defendant, and the controversy presented by the record and briefs is one in which each party to the action is looking out for itself alone, and is indifferent to what may befall the others. Though trying to hold both defendants liable, plaintiff would be satisfied with a judgment against either, and each defendant is laboring quite as hard to shift the sole responsibility for plaintiff's loss to the shoulders of its codefendant as it is to show that plaintiff has no cause of action against either. A full statement of the material facts of the case appears in the following findings of fact, made by the court at the request of the connecting carrier:

"In August, 1905, there were engaged in the banana business in Kansas City a corporation under the name of W. H. Wells Fruit Company and a partnership under the name of W. H. Wells & Son Banana Company. The former had been in business for some time and the latter recently established. W. H. Wells had been for a long time connected with the corporation, but left it and formed the said partnership. August 17, 1905, defendant Mobile & Ohio Railroad Company, at the city of Mobile, Ala., received from J. B. Cefalu & Bro. a car load of bananas in I. C. car 54515, and issued its bill of lading therefor of the same date acknowledging receipt of said bananas from said shippers and consigning the fruit to W. H. Wells & Sons, Kansas City, Mo., routing them via Tupelo, Miss., where they were to be delivered to the defendant St. Louis & San Francisco Railroad Company. The bill of lading was delivered to the shipper, and was never seen by the St. Louis & San Francisco Railroad Company until after the bananas had reached Kansas City and been delivered. Among other provisions, the bill of lading contained the following: `8. If the word "order" is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of the party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein, the said property may, at the option of the carrier, be delivered without requiring the production or surrender of this bill of lading.' The word `order' was not written upon said bill of lading. The car reached Tupelo August 17, 1905, and was at once delivered to the connecting carrier, the St. Louis & San Francisco Railroad Company, and started promptly on its way towards Kansas City, arriving at Memphis, Tenn., the next day. From Memphis it was at once forwarded and arrived at Kansas City at 3:10 p. m. on August 19, 1905. The bill of lading was signed by the Mobile Company's agent at Mobile, H. J. Griffin, and on the same day he telegraphed that company's agent, Thompson, at Tupelo billing instructions for the car as follows: `54515, W. H. Wells Fruit Company, Kansas City, Missouri; gross 584; tare 379; net 20500; rate 65; freight $129.15' These were the only instructions or information which the agent at Tupelo had with reference to the forwarding or consigning of the bananas. Upon the arrival of the bananas at Tupelo, the Mobile Company's agent, Thompson, made out a waybill, or billing, as it is called, in accordance with such instructions, showing, among other things, the consignee as W. H. Wells Fruit Company, and mailed one copy of such waybill to the agent of the Frisco at Kansas City. In order that the agent and conductor of the Frisco Company at Tupelo might know what to do with the car, Agent Thompson also gave the same information as to destination and consignee to the Frisco Company's agent there, who entered such information upon a red ball waybill, so called, being a paper used for perishable freight to be moved quickly, and gave the same to the Frisco Company's conductor in charge of the train which took the car to Memphis. At the latter place the said conductor delivered this red ball waybill to the conductor of the train who took the car from Memphis towards Kansas City, and that conductor delivered it to the next conductor, and so on, and each conductor indorsed on the back of said red ball waybill in blanks for the purpose the number of the train in which he carried it, the time at which he received it and delivered it, and the stations between which it was hauled...