Cicardi Bros. Fruit and Produce Company v. Pennsylvania Company
| Citation | 249 S.W. 134,211 Mo.App. 589 |
| Parties | CICARDI BROS. FRUIT and PRODUCE COMPANY, Appellant, v. PENNSYLVANIA COMPANY, Respondent |
| Decision Date | 06 February 1923 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
AFFIRMED.
Judgment affirmed.
Frank A. Thompson for appellant.
(1) The railroad company made a charge of $ 3 upon each car as a diverting or reconsigning charge. It was the duty of the defendant and its agents to exercise reasonable and ordinary care to bring about reconsignment of the cars involved in this case. If it, or its agents, failed to exercise reasonable and ordinary care to divert or reconsign the cars it was guilty of negligence, and evidence of the usual and customary manner of diverting or reconsigning cars of produce was proper, all of which is distinctly held in the former appeal of this case. Cicardi Bros. Fruit and Produce Company v. Pennsylvania Company, 201 Mo.App. 609, 213 S.W. 531. (2) There was never any contention made by defendant that the three cars of potatoes were not in the Pittsburgh Produce Yards at Pittsburgh, Pennsylvania on July 11, 1914. The cross-examination of the witnesses on the part of the defendant concedes this to be true. Defendant's only contention was that the Vandalia office was not told by the plaintiff that the cars were in the Pittsburgh Produce Yards when the plaintiff knew it and the Vandalia agents (as claimed by them, but denied by plaintiff) did not know it. This theory is gleaned from the cross-examination of Miss Hanson. (3) The waybills show that the cars were taken from the Pittsburgh Produce Yards to Chicago on a billing of the Pennsylvania Company. The cars were in the Pittsburgh Produce Yards on July 11, 1914. The inference, of course, is then that they were in the possession of the Pennsylvania Company as the evidence is that the waybill is issued by the railroad company on which the car originates. So that if the shipment from Pittsburgh to Chicago originated in the Pittsburgh Produce Yards the inference to be drawn from the testimony is very strong that while the potatoes were in the Pittsburgh Produce Yards on July 13, 1914, they were in the possession of the Pennsylvania Company and, of course, there is further direct evidence that they were on this date in the possession of the Pennsylvania Company at Pittsburgh. (4) It is elementary that if there is even the slightest evidence, and whether it be direct or inferential, it is erroneous to give the peremptory instruction. Hughes v. Ellison, 5 Mo. 110; Morton v. Reeds, 6 Mo. 64; Hays v. Bell, 16 Mo. 496; Taylor v. Short, 38 App. 21; Chamberlain v. Smith, 1 Mo. 481; Speed v. Herrin, 4 Mo. 356. (5) It is the duty of a railroad company, having goods in its possession, to divert or reconsign them in accordance with the instructions of the rightful owner thereof. 10 Corpus Juris, 84; Lord and Bushnell Co. v. Railroad, 155 Mo.App. 175; Carder v. Railroad, 170 Mo.App. 698.
Fordyce, Holliday & White for respondent.
(1) The Pennsylvania Company owed the plaintiff no duty to reconsign or divert on July 11, 1914, because the cars on that date were not in the possession of defendant. Bosworth v. Railway Company, 87 F. 72; Texas & Pacific Ry. Co. v. Reiss, 183 U.S. 621; Otrick v. Ry. Co., 154 Mo.App. 420, 432; So. Ry. Co. v. Renes, 192 Ala. 620; Palmer v. Railroad Co., 56 Conn. 137; Railroad Co. v. Washburn, 22 Ohio State 324; Mo. P. Railroad v. McFadden, 154 U.S. 155. (2) Where an arrangement is made between several connecting carriers by which goods to be carried over the entire route are to be delivered by each carrier to the next succeeding carrier, each carrier to pay the preceding carrier the amount of its charges, and the last one to collect the whole amount from the consignee, the receiving of the goods by the last carrier and the payment of the entire charge by the consignee will not render the last carrier liable for any injury done to the goods before they are received by it. Gass v. Railroad Co., 99 Mass. 220; Darling v. Railroad Co., 11 Allen (Mass.) 295; Miller v. Railroad Co., 83 Texas 518. (3) Plaintiff is not entitled to recover for the reason that its original petition sounded in contract and the present petition sounds in tort. Cicardi Bros. Fruit & Produce Co. v. Pennsylvania Co., 201 Mo.App. 609; Ingwerson v. Railroad Co., 205 Mo. 328, and on subsequent appeal, 150 Mo.App. 374; Drake v. St. L. & S. F. R. Co., 35 Mo.App. 553; Wernick v. St. L. & S. F. R. Co., 131 Mo.App. 37. (4) Plaintiff could not recover on any special contract, and the amended petition which converted it into an action in tort was equivalent to the bringing of the new action more than five years after the cause of action arose, and the Statute of Limitations being pleaded, the court was in duty bound to sustain defendant's demurrer. Cicardi Bros. Fruit & Produce Co. v. Pennsylvania Co., 201 Mo.App. 609; Section 1317, R. S. 1919.
--This is a suit for damages resulting from the alleged failure on the part of the defendant company, through its agents, "to exercise reasonable and ordinary care" to bring about a diversion and reconsignment of three carloads of potatoes.
At the close of plaintiff's case, the court indicating that it would give a peremptory instruction to the jury to find for defendant, plaintiff took an involuntary nonsuit. Plaintiff's motion to set aside said involuntary nonsuit and to grant plaintiff a new trial was in due course overruled and plaintiff appeals.
This is the second appeal of this case. Our opinion on the first appeals is reported in 201 Mo.App. 609, 213 S.W. 531, and resulted in a reversing of the judgment and remanding of the cause to the trial court for such further proceedings as were not inconsistent with said opinion. Plaintiff, before trying the case again, filed its second amended petition. The substance of plaintiff's cause of action as set out in its second amended petition is as follows:
The petition alleges that the Vandalia Railroad Company is a common carrier of merchandise and a connection of the defendant, and that the said Vandalia, together with defendant and various other connecting common carriers form a system known as the Pennsylvania System, and that the said Vandalia Company in the city of St. Louis is the agent of and acts as the agent for the defendant "for the purpose of receiving reconsigning orders or shipping orders with reference to any merchandise in the possession of the defendant for shipment by said defendant."
"Plaintiff states that on or about July 11, 1914, the defendant had in its possession at Pittsburgh, Pennsylvania holding for diverting or reconsigning orders, three carloads of potatoes, plaintiff's property . . .".
The petition then alleges that on the morning of July 11th, it gave the said Vandalia Railroad Company at St. Louis orders to divert or reconsign the said three carloads of potatoes to F. E. Baldwin & Company at Chicago, Illinois; that the Vandalia Company, acting as agent for the defendant, accepted said diverting and reconsigning orders and agreed that it would immediately divert or reconsign said cars by wire.
It is further alleged that for a long time prior to July, 1914, plaintiff had frequently given similar orders to the said Vandalia Company, acting as agent for the defendant, "for cars of potatoes in the possession of the defendant company held for reconsignment at Pittsburgh and various other places;" that it had been the custom of the Vandalia Company, as such agent, to immediately bring about the diversion or reconsignment by use of the telegraph or telephone, and that in the exercise of ordinary care the Vandalia Company, in the present instance, would have caused the diversion of the said cars of potatoes by telegraphing or telephoning said orders to the defendant at Pittsburgh, but that the said Vandalia Company, as agent of the defendant, failed to exercise reasonable care in diverting or reconsigning the said cars of potatoes in that instead of telegraphing or telephoning the orders to the defendant company at Pittsburgh on Saturday, July 11, 1914, it sent such orders by mail.
The petition then alleges that had the defendant diverted and reconsigned the cars by telegraphing or telephoning the orders on July 11, 1914, instead of mailing such orders to Pittsburgh, the said cars of potatoes would have arrived in Chicago, Illinois on Monday, July 13, 1914, but because of this alleged negligence of the defendant the cars were not diverted out of Pittsburgh until July 14, 1914, and did not arrive in Chicago until July 17, 1914, and that the market in Chicago on the 17th day of July, 1914 was much lower than it was on the 13th day of July, 1914, whereby plaintiff alleges it was damaged in the sum of $ 1252, for which it prays judgment.
In light of the disposition we are making of the case it is not necessary to note the answer or the reply thereto.
On the trial of the case plaintiff introduced testimony tending to prove that the three carloads of potatoes in question were shipped by the Eastern Shore Produce Exchange from Cape Charles, Virginia to Pittsburgh, Pennsylvania, over the lines of the New York, Philadelphia & Norfolk Railroad Company. The bills-of-lading read to "Shippers Orders" with instructions to notify Cicardi Bros. Fruit & Produce Company at St. Louis, Missouri. The bills-of-lading with sight draft attached were mailed to a bank in St. Louis. The plaintiff in due course took up the draft and obtained the bills-of-lading on the morning of Saturday, July 11, 1914. And during the course of the forenoon on the same day plaintiff telephoned to the office of the Vandalia in St....
To continue reading
Request your trial