Cohen v. St. Louis Merchants Bridge Terminal Railway Co.

• Decision Date: 04 January 1916
• Citation: 181 S.W. 1080,193 Mo.App. 69
• Parties: L. J. COHEN et al., Respondents, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

181 S.W. 1080

193 Mo.App. 69

L. J. COHEN et al., Respondents, v. ST. LOUIS MERCHANTS BRIDGE TERMINAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

January 4, 1916

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

AFFIRMED.

Judgment affirmed.

T. M Pierce, J. L. Howell and W. M. Hezel for appellant.

(1) The court erred in sustaining plaintiff's demurrer to parts of defendant's answer. The ordinance does not change the rules of evidence as such, but sets forth the terms and conditions under which a junk merchant may do business in the city of St. Louis and the condition requiring a license is another condition required by the ordinance. The city of St Louis under its Charter had the right to pass such an ordinance. Clause 5, section 25, article 3, Charter of city of St. Louis; Clause 14, section 26, article 3, Charter of city of St. Louis; City v. Howard, 119 Mo. 41; City of St. Louis v. Fischer, 167 Mo. 663; Kansas City v. Oil Co., 140 Mo. 458; Railroad Co. v. Kirkwood, 159 Mo. 252; St. Louis v. Construction Co., 224 Mo. 479; Rosenthal v. New York, 227 U.S. 271. (2) The court erred in giving instructions as to the credibility of witnesses. Keeline v. Sealy, 257 Mo. 527.

Louis Mayer and Malcolm I. Frank for respondents.

(1) Ordinance No. 24751 of the city of St. Louis, being section 2163 of Rombauer's Revised Code, 1912, of the city of St. Louis, is void, because--(a) The city of St. Louis has no power or authority under its Charter to make or establish rules of evidence contrary to the established laws of the State. Dixon v. Mayer, 186 Ill.App. 247; McNulty v. Toopf, 116 Ky. 202, 75 S.W. 258; 2 Dillon on Municipal Corporations (5 Ed.), section 643; McQuillan on Municipal Ordinances, section 219, note 9; McQuillan on Municipal Corporations, section 649; Horr & Bemis on Municipal Police Ordinances, section 6 and 7; Charleston v. Dunn, 1 McCord 33; Fitch v. Pinckhard, 5 Ills. 76; In re Wong Hane, 108 Cal. 680, 41 P. 693. (b) Said ordinance invades the province of general legislation and attempts to change the policy of the State as declared in her laws for the people at large and changes the substantive law by casting the burden of proof as to the ownership of the goods here in controversy on this respondent. Badgly v. City of St. Louis, 149 Mo. 131; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kilroy v. St. Louis, 242 Mo. 83; Wiggins v. St. Louis, 135 Mo. 558. (2) But even conceding the validity of said ordinance for the purpose of this argument, yet the alleged violation of said ordinance by respondents would not defeat respondents' rights to recovery, because--(a) Appellant claimed no interest or title to the goods here in controversy, alleging the title to same in various other railroads, with whom it had no privity. Coppedge v. M. K. Goetz B. Co., 67 Kan. 851, 39 P. 908; Blackburn v. Southwest Mo. Ry. Co., 167 S.W. 458; Reed v. Railroad Co., 50 Mo.App. 504; Phelan v. Paving Co., 227 Mo. 666, 127 S.W. 318; Platz v. City of Cohoes, 89 N.Y. 219. (b) The property of even a trespasser cannot be taken, injured or destroyed without liability for the consequences. Brown v. Lynn, 31 Pa. 510 (Casey) . (3) The duty of appellant to respondent is like any other bailee and the carrier must respect the apparent ownership of the shipper from whom he receives possession and cannot question the shipper's right to the goods, in case the transaction is not such as to impart a transfer of title to the consignee, although as a matter of fact the shipper is not the real owner. 6 Cyc. pages 434 and 435. (4) Where the testimony was conflicting on the most important issues in the case, a cautionary instruction that if the jury believe that any witness had knowingly sworn falsely to any fact material to the issue they were at liberty to reject all or any portion of his testimony was within the discretion of the court. Price v. Hiram Lloyd Bldg. & C. Co., 177 S.W. 700; Schuler v. Insurance Co., 176 S.W. 274; Hartpence v. Rogers, 143 Mo. 634.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action, instituted against appellant and certain other companies, to recover the value of certain "scrap brass" delivered by plaintiffs to appellant, a common carrier, in the city of St. Louis, on May 1, 1913, to be delivered by appellant to the Chicago & Alton Railroad Company for transportation over the latter's line of railway, and to be delivered to another railway company for transportation to its final destination, to-wit, Michigan City, Indiana. The brasses, packed in barrels, were loaded into a freight car, provided by appellant, but while the car remained in appellant's custody, in the city of St. Louis, appellant permitted representatives of certain railroad companies to enter the same and take therefrom various brasses, consisting of old journal bearings used in railroad cars. The brasses so taken from the car were stamped with certain initials or marks employed by the respective railroad companies to identify brasses of this character used upon their cars, and were claimed to be the property of such railroad companies.

It is conceded that the various railroad companies in question were freely permitted to take from this car the brasses which they claimed to own. And it is asserted as a defense that the property, for the value of which plaintiff sues, was in fact delivered to the true owners thereof. In defense the defendants also set up and relied upon an ordinance of the city of St. Louis, providing that the burden of proof shall be upon a person conducting a junk shop to prove the name and residence of his vendor (Section 2163, Revised Code of the city of St. Louis, Rombauer, 1912), and an ordinance requiring junk dealers to have a license.

Plaintiffs demurred to this answer. The court overruled the demurrer as to that portion of the answer averring that defendants had in fact caused the goods in question to be delivered to the real owners thereof. The demurrer was sustained as to those portions of the answer which set up the above-mentioned ordinances in defense. Exceptions were duly preserved to the action of the court in sustaining the demurrer to said portions of the answer; and upon the trial appellant's counsel offered the ordinances in evidence, but they were excluded.

The cause was tried before the court and a jury and at the close of plaintiff's case the court directed a verdict in favor of all of the defendants except this appellant. The cause thereupon proceeded, appellant adducing evidence in support of the one defense which it was permitted to assert, and resulted in a verdict and judgment for plaintiff.

The issue tried was whether plaintiffs were in fact the owners of the property which they delivered to appellant, and which was permitted to be taken from its custody by certain railroad companies, or whether in fact the title to such property was vested in the latter companies. Upon this issue plaintiffs' evidence went to prove the purchase of the brasses by plaintiffs in the usual course of business; and that they purchased such materials in large quantities from foundries and regular dealers therein, and not in small lots by wagon delivery or from local junk dealers. Most of the car brasses were old, i. e., brasses that had been worn, though there is much conflict in the testimony as to their condition. From the evidence it appears that there were some new brasses in the car, and plaintiffs' evidence goes to show that certain new brasses were placed therein which plaintiffs had purchased from a manufacturer of such brasses. However, it does not appear that those taken from the car, and here in controversy, were new brasses.

Appellant's evidence went to show that the brasses taken by the various railroad companies had their respective stamps or marks thereupon. But there is ample evidence from which it may be found that such brasses might well, in the usual course of business, properly come into the hands of dealers in such material. It is unnecessary to review in detail this testimony. Suffice it to say that plaintiffs' evidence made a ...