Cronan v. St. Louis & San Francisco Railroad Company

• Decision Date: 07 July 1910
• Citation: 130 S.W. 437,149 Mo.App. 384
• Parties: JOHN H. CRONAN, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

130 S.W. 437

149 Mo.App. 384

JOHN H. CRONAN, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 7, 1910

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

Judgment affirmed.

W. F Evans and Moses Whybark for appellant.

(1) There never was an agreement on the part of the defendant to furnish plaintiff cars, and the court erred in so finding. Lucky v. Railroad, 133 Mo.App. 589; Railroad v Arnett, 88 S.W. 448; Railroad v. Cannington, 110 S.W. 965; Gann v. Railroad, 65 Mo.App. 670; Cangas v. Mfg. Co., 37 Mo.App. 307; Egger v Nesvitt, 122 Mo. 667; Embry v. Hargadine, 127 Mo.App. 383; Mfg. Co. v. Lumber Co., 115 Mo.App. 114; Batavia v. Railroad, 126 Mo.App. 13; Campbell v. Handle Co., 117 Mo.App. 19. (2) Plaintiff's shipments were beyond the line of defendant's road, and it was not unlawful for it to refuse to allow its cars to be sent to distant points on other lines, and especially, so when the business of its own line was sufficient to keep its cars occupied. Riddle v. Railroad, 1 Reports 1888, 693; Railroad v. State, 120 S.W. 1038; Parks v. Railroad, 10 Reports 47; Railroad v. Myrick, 107 U.S. 102; 27 Law Ed. 325. (3) In the absence of a contract the plaintiff was not entitled to recover because the evidence showed a sudden and unexpected increase of business, and to meet it defendant was called upon to provide cars not possible for it to obtain in time; and the cars required were to be of a particular type, and be used to meet a demand for shipments beyond its own line. The authorities all hold that a shipper has no cause of action against the carrier where the default of the carrier arises in cases of this kind. Ballentine v. Railroad, 40 Mo. 491; Hoffman Co. v. Railroad, 119 Mo.App. 501; Dawson v. Railroad, 79 Mo. 296; Faulkner v. Railroad, 51 Mo. 311; Pruitt v. Railroad, 62 Mo. 527; State v. Railroad, 90 N.W. 309; State v. Railroad, 101 N.W. 23; Strought v. Railroad, 87 N.Y.S. 30; 4 Elliot on Railroads (1 Ed.), sec. 1470; Moore on Carriers, 105. (4) The court erred in permitting the plaintiff, in rebuttal, to show by witnesses Stout, and others, that they had trouble to get cars at various stations other than James, in Pemiscot county in 1904, '05, '06 and 1907. Connor v. Railroad, 181 Mo. 397; Newcomb v. Railroad, 182 Mo. 687; Van Ravenswaay v. Insurance Co., 89 Mo.App. 73; Haycraft v. Grigsby, 88 Mo.App. 354; Van Edwards v. Asphalt Co., 92 Mo.App. 221; Globe v. Kansas City, 148 Mo. 470; Williamson Co. v. Corset Co. , 70 Mo.App. 424; State v. Clawson, 30 Mo.App. 139; St. L. Gaslight Co. v. Insurance Co., 33 Mo.App. 348; Hayes v. Railroad, 15 Mo.App. 584; Coale v. Railroad, 60 Mo. 227; Huston v. Forsythe, 56 Mo. 416; Stout v. Columbia, 118 Mo.App. 439; Glasgow v. Railroad, 191 Mo. 347; Council v. Railroad, 124 Mo.App. 432.

Shepard & Shepard for respondent.

(1) The agent and the trainmaster both told plaintiff to accept the order for the poles and piling, and that they would furnish him the cars on which to ship same. This has ever been held as a contract on the part of the transportation company to furnish cars. Meriwether v. Railroad, 128 Mo.App. 647; Baker v. Railroad, 91 Mo. 152; Fountain v. Railroad, 114 Mo.App. 676; Pruit v. Railroad, 62 Mo. 527; Guinn v. Railroad, 20 Mo.App. 459; Railroad v. Hodge, 30 S.W. 829; Railroad v. House & Watkins, 88 S.W. 1110; Railroad v. Ozier, 110 S.W. 593; Hoffman Co. v. Railroad, 119 Mo.App. 495. (2) The law imposes the obligation upon a railroad to have and to furnish sufficient facilities for the reasonably prompt transportation of goods tendered for carriage, and they are liable for failure to transport promptly whether their failure is due to want of facilities or to a captious refusal to carry. Quinn v. Railroad, 20 Mo.App. 459; Russell v. Railroad, 114 Mo.App. 488; McFall v. Railroad, 117 Mo.App. 481; Ficklin v. Railroad, 117 Mo.App. 221; Hoffman Heading Co. v. Railroad, 119 Mo. 495.

OPINION

GRAY, J.

This is a cause instituted in the Pemiscot County Circuit Court to recover damages from defendant as a common carrier, for failure to furnish plaintiff cars on which to ship poles and piling placed for shipment at James Switch, on defendant's railroad. Defendant appealed from a judgment for the plaintiff.

Plaintiff alleges in his petition that from the month of October, 1906, to the month of March, 1907, he was engaged in the pole and piling business in said county; that during the time above mentioned, he placed at the station of James, large quantities of cypress poles and piling to be shipped over defendant's railroad, all of which said poles and piling were placed at the usual place at said station of James, for receiving such freight by defendant for shipment; that plaintiff tendered said poles and piling to defendant for transportation, under the terms such freight was handled by defendant, and offered to pay to defendant the regular and customary charges for the transportation of same; that he frequently requested and demanded of defendant to ship said poles and piling, as aforesaid, and defendant promised to furnish plaintiff the cars so requested by him on which to ship his freight; that during said time he was prepared to handle, load and ship four cars of said poles and piling per day, and requested that number of cars from the defendant; that the defendant wholly disregarded its duties in the premises and failed to furnish said cars so requested by plaintiff, by reason of which failure on the part of the defendant to furnish said cars for the plaintiff, large quantities of poles and piling accumulated at said station, awaiting cars, and on account of the delay and failure of defendant to furnish said cars, said poles and piling became damaged; that during the time said poles and piling were lying at the station waiting for shipment, there was a material drop in the price of the same, and if defendant had furnished the cars as requested and as it agreed to do, plaintiff would have been able to have sold the poles for the sum of $ 4,684.38 more than he afterwards realized for the same.

Plaintiff further stated that during said time he was required to maintain and keep at said station, a foreman and crew of men ready to load cars when the same were furnished, and that on account of defendant's failure to furnish the cars, he was to the additional expense of $ 1275 for such purposes.

The answer in addition to a general denial, affirmatively alleged that defendant furnished plaintiff at the station all the cars necessary for the transportation of its average business with him at that station, and distributed to said station its just and due proportion of cars of the kind requested and required to do business at that station, and all that it could spare, considering the average and usual business that was to be done at that station, and if the plaintiff was deterred in shipping the logs and piling alleged in the petition, it was because of an unusual pressure of business at that station, and out of the usual order, and beyond the average and ordinary amount of business at that station, together with an unusual pressure of business and a sudden influx thereof on defendant's railroad, a status which prevented defendant from supplying cars at all the stations along its railroad to meet the emergency, and that this sudden influx and unusual pressure of business was not anticipated and could not be foreseen in time to provide for that condition; that during the period complained of there were heavy rain falls which caused damage to defendant's tracks and road, and on account thereof, defendant was unable, a part of the time, to supply the cars it otherwise would have furnished. The reply was a general denial.

Plaintiff offered testimony tending to prove that from the month of October until late in the spring of 1907, he continually made requests for cars, and that the defendant's agents promised to furnish same; that he ordered four cars a day and got about two a week; that he had teams hauling poles and piling to the station, and at the time he was placing the poles and piling for shipment at the station, the prices were good and he had a sale for his entire product; that he used all the cars he could get and was prepared to load all the poles and piling he had at the station, if defendant had furnished him cars; that there remained on the ground undisposed of, poles and piling of the value of $ 5855.47; that he disposed of the same to the best advantage and his damages exceeded the amount of the judgment.

As there is some dispute concerning the promise and agreement of the agents of the defendant concerning the cars, we set forth the following testimony given by the plaintiff:

"I took the matter of furnishing cars up with the trainmaster; met him and talked with him about this matter two or three times a month, and sometimes oftener. He always promised me cars and usually would help me right at the time. I talked about this matter to Mr. Brundige, the agent, and to Mr. Turner, the trainmaster, and to Mr. Wright after he succeeded Mr. Turner. They continually made me the promise to furnish cars; sometimes they would say, 'We can't do it to-day, but in a few days we can give you all you need--keep you going.' At all times they agreed to furnish me cars on which to ship this stuff. I talked to the agent and the trainmaster about the condition of the poles and piling, that they were being ruined. Talked to the agent about the cars nearly every morning; and when I would talk to him he would say, 'All right, all I can I will try to help you out.' Mr. Turner said, 'I am going to keep you in cars, give you one every day.' I would speak to the station agent at Hayti about cars, and he would tell...