Cohen v. Missouri, K. & T. Ry. Co.

• Decision Date: 28 May 1907
• Citation: 126 Mo. App. 244,102 S.W. 1029
• Court: Missouri Court of Appeals
• Parties: COHEN v. MISSOURI, K. & T. RY. CO.

102 S.W. 1029

126 Mo. A. 244

COHEN v. MISSOURI, K. & T. RY. CO.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

Rehearing Denied June 11, 1907.

1. CARRIERS—CARRIAGE OF GOODS—CONNECTING CARRIERS—LIABILITY.

Where a common carrier contracts to transport goods beyond the terminus of its own lines, the connecting carriers employed in furthering and completing such transportation become agents of the initial carrier, who is responsible for their defaults to the owner of the goods.

2. SAME.

Where a carrier holds goods for delivery to succeeding carriers, he holds them as a carrier, and not as an ordinary bailee or mere forwarder, and, although the connecting carrier refuses or unreasonably delays to receive them, the relation of common carrier continues until the carrier by warehousing the goods or some other unequivocal act indicates its purpose to change its relation from that of carrier for transportation to that of a mere custodian for safe-keeping or forwarding.

3. SAME.

Where defendant railroad agreed with plaintiff, the consignee of freight, that in consideration of a certain sum paid by plaintiff it would deliver the cars, which were then on its "hold" track, over the tracks of other railroads to plaintiff's place of business, it continued to sustain the relation of common carrier to plaintiff, and was responsible for loss resulting from failure to promptly deliver the cars.

4. SAME.

Where defendant railroad agreed with plaintiff, the consignee of freight, that without extra charge it would send certain cars consigned to plaintiff, and which had not arrived, to his place of business over the roads of connecting carriers, instead of sending them directly to defendant's "hold" tracks, defendant continued to sustain the relation of common carrier to plaintiff, and was liable for loss resulting from failure to promptly deliver the cars, although such failure was caused by the refusal of connecting carriers to receive the cars.

Bland, P. J., dissenting.

Appeal from St. Louis Circuit Court; Dan. G. Taylor, Judge.

Action by Max Cohen against the Missouri, Kansas & Texas Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

Joseph Wheless, for appellant. L. F. Parker, for respondent.

NORTONI, J.

The plaintiff, a dealer, was the owner and consignee of five cars of scrap iron, shipped to him from some point in Texas over the defendant, Missouri, Kansas & Texas Road. The original contract under which the various cars were shipped, it is said, denominated the point of destination to be the city of St. Louis. No particular point in the city was mentioned. Two of these cars arrived at defendant's terminals in North St. Louis on September 3d, one on September 22d, and two on October 7th. The defendant promptly notified plaintiff of the arrival of each car. Upon the arrival of the first three cars, pursuant to the usual custom, defendant placed them upon its "hold" track, and while so upon the hold track after their arrival, and prior to the arrival of the last two cars, plaintiff called upon defendant's agent and paid the freight on all five of the cars, giving written directions or "reconsignment orders" to defendant's agent to deliver the five cars at his place of business, a private switch at Twenty-Third and Gratiot streets, which orders defendant accepted, and agreed to deliver or cause to be delivered the five cars as directed. At the time of paying the freight and giving such reconsignment orders, plaintiff paid to the defendant an additional charge of $2 for each of the three cars then standing on its hold track to compensate it for services in transporting, or causing to be transported, the three cars mentioned from its hold track to plaintiff's switch at Twenty-Third and Gratiot streets. The charge is denominated in the evidence by the plaintiff and the defendant's agent a "reconsignment charge." No additional compensation or reconsignment charge was paid by plaintiff on account of the two cars which had not yet arrived, for the reason, as given by both plaintiff and defendant, no such charge is made by the railroad companies when they receive specific directions, or what they term "reconsignment directions," prior to the arrival of the car. In such case defendant's agent said there is no extra service entailed, inasmuch as it is usually quite as convenient for the railroad company to switch the car to the point of reconsignment in the city onto some private switch as it is to switch it upon its "hold" track, and therefore a $2 reconsignment charge is made on account of those cars only which have reached the railroad terminals and passed upon its "hold" track prior to receiving reconsignment directions; that is, directions for delivery to some special point in the city. As stated before, however, the defendant, without requiring more on account of the two cars still en route than the payment of the freight charges from the point of shipment in Texas to the city of St. Louis, accepted the reconsignment directions with respect to those two cars as well, and agreed to transport or cause the same to be transported to plaintiff's switch at Twenty-Third and Gratiot streets, as though they were through shipments thereto. No special time was mentioned between the parties when the cars should reach plaintiff's switch. It was shown in evidence, however, that such had been and was the usual course of dealing between the parties with respect to numerous prior shipments of like kind, and that, in the usual course of business, the cars reached plaintiff's switch in from 24 to 48 hours after their arrival in St. Louis under reconsignment orders; that 48 hours was reasonable and ample time therefor. The defendant's terminals or yards are in North St. Louis, adjacent to the river front, and, in order to convey the cars to plaintiff's private switch, which is connected with the tracks of the Missouri Pacific Railroad, and situated, as stated, at Twenty-Third and Gratiot streets, some four or five miles distant from defendant's terminals, it was necessary to pass over the lines of one of three intermediate carriers, the St. Louis Merchants Bridge Terminal Railroad Company, Wiggins Ferry Company, or the Wabash, Western Division, and from thence over the Missouri Pacific tracks to plaintiff's switch. Instead of the several cars reaching plaintiff's switch within the course of 48 hours after their arrival and the reconsignment contract, although plaintiff was constantly urging the defendant to deliver the same, they were not delivered for several weeks thereafter, two on October 22d, and three on October 23d. In the meantime the price of iron declined, in consequence of which it stands admitted upon the record that plaintiff sustained loss on the sale of the contents of the five cars mentioned to the amount of $319.35. The defendant introduced evidence tending to show that on account of the congestion of business on the Missouri Pacific tracks, resulting, probably remotely, from the Mississippi river overflow in June of that...