Cicardi Brothers Fruit & Produce Company v. Pennsylvania Company

• Decision Date: 06 May 1919
• Citation: 213 S.W. 531,201 Mo.App. 609
• Parties: CICARDI BROTHERS FRUIT & PRODUCE COMPANY, a Corporation, Respondent, v. PENNSYLVANIA COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

213 S.W. 531

201 Mo.App. 609

CICARDI BROTHERS FRUIT & PRODUCE COMPANY, a Corporation, Respondent, v. PENNSYLVANIA COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, St. Louis

May 6, 1919

Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas C. Hennings, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Fordyce Holliday & White for appellant.

(1) The special oral agreement alleged in plaintiff's petition "immediately divert or reconsign by wire" on July 11, 1914, is void as a violation of the Interstate Commerce Act. C. & A. v. Kirby, 225 U.S. 155, 56 L.Ed 1033. (2) A shipper cannot recover damages for the breach of the carrier's special agreement for the interstate shipment of freight where no provision is made for such special agreement in the tariffs and regulations on file with the Interstate Commerce Commission. C. & A. v Kirby, 225 U.S. 155, 56 L.Ed. 1033. (3) The carrier and the shipper can make no alteration of the terms upon which the goods are held under a tariff or published regulation. So. Ry. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836 839; Western Transit Co. v. Leslie, 22 U.S. 448, 61 L.Ed. 423, 427. (4) The tariffs and regulations containing bills of lading and the rules for movement of freight, on file with the Interstate Commerce Commission, are to be treated as statutes of the United States and are binding on the shipper and carrier alike. P. R. R. Co. v International Milling Co., 230 U.S. 184, 57 L.Ed. 1446, 1451. (5) To allow recovery on the special contract pleaded and proved in this case would permit the carrier to give an advantage or preference to the plaintiff not open to all and not provided in the published tariffs, and would open the door to all manner of special contracts, departing from the schedules and rates filed with the Interstate Commerce Commission and defeat the primary purposes of the Interstate Commerce Act. C. & A. v. Kirby, 225 U.S. 155, 56 L.Ed. 1033; A. T. & S. F. Ry. Co. v. Robinson, 233 U.S. 173, 58 L.Ed. 901, 905; Ingwerson v. Railroad Co., 205 Mo. 328. (6) Contracts between the shippers and carriers for the interstate movement of freight are governed by Federal law. Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314; C. C. C. & St. L. R. R. v. Dettleback, 239 U.S. 588, 60 L.Ed. 453; Southern Ry. Co. v. Prescott, 240 U.S. 632, 60 L.Ed. 836, 839; Western Transit Co. v. Leslie, 242 U.S. 448, 61 L.Ed. 423; C. N. O. & T. P. Ry. Co. v. Rankin, 241 U.S. 319, 60 L.Ed. 1022; McFall v. Ry. Co., 185 S.W. 1145 (Mo. App.). (7) The parties cannot waive the terms of the contract under which the shipment was made pursuant to the Federal Act, nor can the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that contract and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. Ga. Ry. Co. v. Blish, 241 U.S. 190, 60 L.Ed. 948. (8) As respects interstate shipments, state courts are, of course, bound to enforce the rule stated in the Blish case that the agreements made under the published tariffs and regulations cannot be modified or waived by the carrier or shipper. McFall v. Railroad Co., 185 S.W. 1157 (Mo. App.); Thompson v. Railroad Co., 185 S.W. 1145 (Mo. App.). (9) Plaintiff must recover on the contract pleaded in its petition, for plaintiff cannot plead one cause of action in his petition and recover on another. Ingwerson v. Railroad, 205 Mo. 528; Cudahy Co. v. Railway Co., 196 S.W. 406 (K. C. Ct. of App.). (10) The defendant, Pennsylvania Company, is not liable for any delay in carrying out reconsignment or diversion orders for the three cars in the Pittsburgh Produce Yards, for plaintiff's own evidence shows that they were on July 11th to 14th in the exclusive possession of the Pennsylvania Railroad Company and not in the possession of the Pennsylvania Company. The responsibility peculiar to a common carrier is not devolved on the next connecting carrier until the receiving carrier has delivered the goods to the former with directions for shipment giving the place of destination and to whom consigned. Until this is done the relation of common carrier is not established between the shipper and the connecting carrier. Bosworth v. Railway Co., 87 F. (C. C. A.) 72, 81, 82 (reversed on other matters), 179 U.S. 442, 45 L.Ed. 267; Texas & P. Ry. Co. v. Reiss, 183 U.S. 621, 46 L.Ed. 358. Otrick v. Ry. Co., 154 Mo.App. 420, 432; So. Ry. Co. v. Renes, 192 Ala. 620; Palmer v. Railroad, 56 Conn. 137; Railroad v. Washburn, 22 Ohio State, 324; Railroad v. McFadden, 154 U.S. 155, 38 L.Ed. 944. (11) The bill of lading issued by the initial carrier governs the entire transportation and fixes the obligations of all connecting carriers. Ga. Ry. Co. v. Blish Co., 241 U.S. 190, 60 L.Ed. 948; Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314; C. C. C. & St. L. v. Dettleback, 239 U.S. 588, 60 L.Ed. 453. (12) The Carmack Amendment makes the initial carrier liable for the acts of all connecting carriers in case of delay by a connecting carrier, but a connecting carrier is not liable for acts of the initial carrier. With the exception of the initial carrier, the rule is that only the carrier on whose line the act was done that created the loss, is liable. Exposition Mills v. Railroad Co., 83 Ga. 441; Otrick v. St. L., I. M. & S. Ry. Co., 154 Mo.App. 420, 432; Hudson v. Railway Co., 226 F. 38, 43; Railway Co. v. Brewing, 96 Tenn. (12 Pickle) 677. (13) The freight bills offered in evidence by plaintiff show that the Pennsylvania Company advanced to the preceding carrier $ 3 for reconsignment charges at Pittsburgh. The reconsignment was, therefore, according to plaintiff's own evidence, undertaken by the Pennsylvania Railroad Company in whose possession the cars were on July 11th to 14th, and was not undertaken by the Pennsylvania Company, defendant in this case, and hence the defendant is not liable. Bosworth v. Railway Co., 87 F. (C. C. A. ) 72, 81, 82; Texas & P. Ry. Co. v. Reiss, 183 U.S. 621, 46 L.Ed. 358; Otrick v. Railway Co., 154 Mo.App. 420, 432; So. Ry. Co. v. Renes, 192 Ala. 620; Palmer v. Railroad, 56 Conn. 137; Railroad v. Washburn, 22 Ohio State, 324; Mo. P. R. R. v. McFadden, 154 U.S. 155, 38 L.Ed. 944. (14) The Vandalia Railroad Company was the agent of the Pennsylvania Railroad Company or Cicardi Bros. to transmit diversion or reconsignment orders to the Pennsylvania Railroad Company for Cicardi Bros., and Cicardi Bros. knew at the time they furnished the diversion or reconsignment orders that the cars were in the Pittsburgh Produce Yards on the tracks of the Pennsylvania Railroad Company; therefore, any breach of contract in the transmission of such orders or putting the orders into effect (conceding, for the sake of argument, there was a valid agreemtnt), was the liability of the Pennsylvania Railroad Company or Cicardi Bros., and not that of the Pennsylvania Company, for the Pennsylvania Company did not have possession of the cars until the orders were put into effect and the cars were actually delivered to the Pennsylvania Company by the Pennsylvania Railroad Company, and this was on July 14, 1914. Bosworth v. Railway Co., 87 F. (C. C. A.) 72, 81, 82; Exposition Mills v. Railroad Co., 83 Ga. 441; Gass v. Railroad Co., 91 Mass. 220; Darling v. Railroad Co., 11 Allen (Mass.) 295; Miller v. Railroad Co., 83 Tex. 518. (15) 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. (16) It is admitted by the plaintiff that there was no delay in transporting the cars by the Pennsylvania Company from Pittsburgh to Chicago after the Pennsylvania Company secured possession of the cars, and that the Court so instructed the jury. Defendant Pennsylvania Company is, therefore, not liable. (See defendant's instruction No. 9, Rec., p. 177). Bosworth v. Railway Co., 87 F. (C. C. A.) 72; Gass v. Railroad Co., 99 Mass. 220; Darling v. Railroad Co., 11 Allen (Mass.) 295; Miller v. Railroad Co., 83 Texas, 518. (17) The Pennsylvania Company is not liable for failure of the plaintiff to furnish diversion or reconsignment orders to Mr. Rush, as Mr. Rush (agent of the Pennsylvania Railroad Company in charge of the produce yards at Pittsburgh) had requested in his telegram to Cicardi Bros. on July 11th. Had plaintiff furnished disposition as requested to the Pennsylvania Railroad Company and the Pennsylvania Railroad Company had delivered the goods to the Pennsylvania Company on July 11th, the responsibility of the Pennsylvania Company would have begun on July 11th; but since the fact that the Pennsylvania Company did not get the goods on July 11th was due to plaintiff's own fault in not replying to the Pennsylvania Railroad Company's agent's telegram for disposition, the Pennsylvania Company, of course, is relieved of any responsibility. Bosworth v. Railway Co., 87 F. (C. C. A.) 72; Gass v. Railroad Co., 99 Mass. 220; Darling v. Railroad Co., 11 Allen (Mass.) 295; Miller v. Railroad Co., 83 Texas, 518. (18) The certificate of the Secretary...