Cohen v. Missouri, Kansas & Texas Railway Company
| Decision Date | 28 May 1907 |
| Citation | 102 S.W. 1029,126 Mo.App. 244 |
| Parties | COHEN, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Danl. G. Taylor Judge.
REVERSED AND REMANDED (with directions).
Joseph Wheless for appellant.
(1) "Reconsignment orders" made new contract for through shipment. After the original contract of carriage ended by arrival in St. Louis, defendant accepted orders to ship cars to another point; these orders and acceptance constituted new contracts of carriage beyond its own line and bound defendant to deliver accordingly within reasonable time. R. S. 1899, sec. 1082; Klass Com. Co. v. Wabash Railway, 80 Mo.App. 164; Myres v. Diamond Joe Line, 58 Mo.App. 201; Guinn v. Railroad, 20 Mo.App. 453; Pruitt v. Railroad, 62 Mo. 539; Eckles v. Railroad, 72 Mo.App. 305, 112 Mo.App. 250; Shewalter v. Railroad, 84 Mo.App. 597; Davis v Jacksonville So. Line, 126 Mo. 69; Bennitt v Railroad, 46 Mo.App. 670. (2) No sufficient excuse for non-delivery. Defendant made these new contracts with full knowledge of all the conditions which it now urges to excuse its failure to fulfill those contracts. It did not notify plaintiff of any unusual conditions likely to cause delay; but accepted the shipments as a matter of course, and collected the charges. This binds the defendant absolutely to make prompt delivery. Russell Grain Co. v. Railroad, 89 S.W. 908; Schwab v. Union Line, 13 Mo.App. 159; Tucker v. Railroad, 50 Mo. 385; Faulkner v. Railroad, 51 Mo. 311; Dawson v. Railroad, 79 Mo. 296; Read v. Railroad, 60 Mo. 199; Lesinsky v. Dispatch Co., 13 Mo.App. 576; 10 Mo.App. 139-40; Gregory v. Railroad, 46 Mo.App. 580; Clothing Co. v. Dispatch Trans. Co., 106 Mo.App. 487.
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, M. K. & T. 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 third, one on September twenty-second, and two on October seventh. 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 $ 2.00 for each of the three cars then standing on its hold track to compensate it for service 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 $ 2.00 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 car 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 twenty-four to forty-eight hours after their arrival in St. Louis under reconsignment orders; that forty-eight 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 forty-eight 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 twenty-second, and three on October twenty-third. 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 year, that road had declared several embargoes against the reception of dead freight, such as plaintiff's iron, from other lines in the city. A portion of this time, however, it had an open order to receive ten cars per day from the defendant. It was shown that defendant made an attempt to deliver one of plaintiff's cars to it in due time and this was rejected, whereupon no further attempt was made in that behalf for some time, until the embargo was removed.
The facts above stated are practically conceded. The real controversy between the parties pertains rather to the conclusion of law on the facts than with reference to the facts themselves. It is insisted upon the part of the plaintiff that defendant is liable to him as a common carrier for the breach of its positive duty as an insurer to deliver the iron within a reasonable time, while on the other hand, it is insisted by the defendant that its duty as a common carrier had ceased and that it was only responsible as a forwarder for the exercise of ordinary care and reasonable diligence in attempting to transport the cars from its terminals to plaintiff's private switch, and that it exercised such care and diligence in attempting to deliver the same to the connecting carrier.
The court adopted the defendant's theory of the case and charged the jury in substance that defendant was acting only as a forwarder after the several cars reached defendant's terminals in St. Louis and was not liable in this action if it exercised ordinary diligence to deliver to its connecting carriers and the delay was occasioned by reason of such connecting carrier's refusal to receive them. The jury found the issues for the defendant under these...
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