Danciger Brothers v. The American Express Company

• Decision Date: 16 June 1913
• Parties: DANCIGER BROTHERS, Doing Business as HARVEST KING DISTILLING COMPANY, Respondents, v. THE AMERICAN EXPRESS COMPANY, Appellant
• Court: Kansas Court of Appeals

158 S.W. 466

172 Mo.App. 391

DANCIGER BROTHERS, Doing Business as HARVEST KING DISTILLING COMPANY, Respondents, v. THE AMERICAN EXPRESS COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 16, 1913

Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.

Judgment affirmed.

Ashley & Gilbert for appellant.

(1) Taking up the contentions in their inverse order for convenience, we find that the eighth amendment has been held by the United States Supreme Court not to apply to State but only to national legislation. Pervear v Massachusetts, 5 Wall. 475, 18 L.Ed. 608; Brown v New Jersey, 175 U.S. 172, 44 L.Ed. 119. (2) Plaintiffs' second contention is also untenable. The "privilege and immunities" secured by the Constitution of the United States do not include the right to sell intoxicating liquors. Bartemeyer v. Iowa, 18 Wall. 129, 21 L.Ed. 929; Crowley v. Christensen, 137 U.S. 86, 34 L.Ed. 620; Giozza v. Tiernan, 148 U.S 657, 37 L.Ed. 599; Cronin v. Adams, 192 U.S. 108, 48 L.Ed. 365. (3) A common carrier may by special contract limit its liability except for negligence. In the absence of proof of fraud, imposition or deceit, the law presumes that the shipper has read his receipt and assented to its terms. Snider v. Express Co., 63 Mo. 376; Boling v. Railroad, 189 Mo. 237. (4) A shipper who himself fills out bills of lading at his own office before their signature by the carrier and who has previously shipped under similar bills of lading is charged with knowledge of their contents. Charnock v. Railroad, 113 F. 92; 194 U.S. 432, 48 L.Ed. 1057; Inman & Co. v. Air Line Railroad, 159 F. 960; Cau v. Railroad, 194 U.S. 427, 48 L.Ed. 1053. (5) "Impossible" means in the interpretation of contracts commercially impossible. Jackson v. Insurance Co., L. R. 10, C. P. 125; 44 L. J. C. P. 27; Jones v. Holm, L. R. 2, Ex. 335; 36 L. J. Ex. 192. (6) The impossibility which prevents the performance of a contract may be caused by a subsequent act of the law. Page on Contracts, sec. 1373. (7) Like every one else the carrier is bound both by duty and necessity to respect and yield to the paramount public authority in power at the place where his undertaking is to be performed. 61 N.Y.S. 115. (8) And where performance of a contract becomes unlawful nonperformance is excused. Sauner v. Ins. Co., 41 Mo.App. 480; Trammel v. Vaughn, 158 Mo. 223; Williford v. Phelan, 113 S.W. 364. (9) The express company strictly performed its duties as common carrier in transporting the packages to their destination. It was excused and discharged from delivering them to the consignees named by reason of the passage of said act by the Mississippi Legislature imposing a privilege tax on persons or corporations maintaining places where liquor was deliverable C. O. D. . . . It would have been unlawful for it to have rebated its charge for transporting said packages to destination. Craddock & Co. v. Wells-Fargo Co., 125 S.W. 59. (10) The carrier's lien for freight entitles him to retain possession until the freight is paid. He will not be guilty of conversion in making payment of freight a condition of delivery. Mordecai v. Lindsay, 5 Wall. 481, 18 L.Ed. 486; 2 Hutchinson's Law of Carriers (2 Ed.), sec. 805. (11) Unless there is an absolute denial by carrier of a shipper's right to a return of goods, or unless the excuses for failure to return are unreasonable, there can be no conversion by the carrier, even on proof of demand by the shipper and a failure to return. Rubin v. Wells-Fargo Co., 85 N.Y.S. 1108. (12) The Mississippi act provides that express companies maintaining or operating offices in the State at which intoxicating liquors legally delivered upon payment of the purchase money therefor without payment of the privilege tax of $ 5000 for each office, shall pay to the State of Mississippi the sum of fifty dollars and to the county in which same is done fifty dollars for each day office is operated. "A penalty implies a prohibition." Roby v. West, 4 N.H. 287. (13) A license is a right granted by some competent authority to do an act which without such license would be illegal. Home Ins. Co. v. City of Augusta, 50 Ga. 530. (14) Where a license required by statute is for protection and to prevent improper persons acting in a particular capacity and not for revenue purposes only, the imposition of the penalty amounts to a positive prohibition of a contract made in violation of the statute. Talliaferro v. Moffett, 54 Ga. 150; Solomon v. Dreschler, 4 Minn. 278. (15) A statute may either expressly prohibit or enjoin an act, or it may impliedly prohibit or enjoin it, by affixing a penalty to the performance or omission thereof. It makes no difference whether the prohibition be expressed or implied. In either case a contract in violation of its provisions is void. Harris v. Runnels, 12 How. 78, 13 L.Ed. 901. (16) This allegation is characteristic of suits in conversion and cannot be rejected as surplusage. Wells v. Connable, 138 Mass. 513. (17) Frequently the inquiry whether the cause of action is ex delicto or ex contractu arises by reason of the general rule both at common law and under the codes, that a plaintiff alleging a cause of action ex delicto cannot recover upon proof of a cause of action ex contractu or vice versa; his recovery must be secundum allegata et probata. 21 Ency. Pl. and Pr. 652 (2); Link v. Vaughn, 17 Mo. 585; Clement v. Yeates, 69 Mo. 623; Raming v. Street Railway, 157 Mo. 506. (18) Although a pleading contains all the averments necessary to authorize a recovery upon a contract, other prominent averments may describe a tort in a manner so logical and orderly as to compel the conclusion that the action is in tort; and averments showing the existence of a contractual relation between the plaintiff and the defendant are frequently regarded as mere inducement preliminary to the statement of the cause of action in tort. 21 Ency. Pl. and Pr. 657; Stanley v. Bircher, 78 Mo. 247. (19) This right of possession at the alleged date of conversion was an essential element of plaintiffs case and should have been proved to entitle plaintiffs to recover for a wrongful conversion. Bank v. Land Co., 152 Mo. 145; Bank v. Fisher, 55 Mo.App. 51; Schwald v. Brinjes, 139 Mo.App. 516.

I. J. Ringolsky for the respondents.

(1) The burden of exusing nondelivery and nonliability on part of defendant is upon the defendant. It follows, that the agreed statement of facts must be taken most strongly against the defendant, just as an affirmative pleading is to be taken most strongly against the pleader. Isenberg v. St. Louis & Vicksburg Anchor Lines, 13 Mo.App. 415-420; Labaree Co. v. Crossman, 100 A.D. 499, 92 N.Y.S. 565. (2) Ardent spirits, distilled liquors, ale and beer are subjects of exchange, barter and traffic like any other commodity in which the right of traffic exists and are so recognized by the usages of the commercial world. Lesisy v. Hardin, 135 U.S. 100-110; American Ex. Co. v. Iowa, 196 U.S. 133, 143, 144, 145. (3) Where a duty imposed by law is violated contrary to the terms of a contract, the injured party can elect to sue on the contract or in tort; where a duty imposed by law is violated, then the suit must be brought by the injured party in tort; and where one violates a duty imposed by contract and not by the law independent of the contract, then the party injured must sue on the contract only. Wernick v. Railroad, 131 Mo.App. 37; Trout v. Livery & Undertaking Co., 148 Mo.App. 621; Trout v. Livery & Undertaking Co., 148 Mo.App. 621-633; Scalpino v. Smith, 135 S.W. 1000-1003; Freeman & Martin v. City of St. Joseph, 136 Mo.App. 316.

OPINION

JOHNSON, J.

Plaintiffs, who are partners doing business in Kansas City under the firm name of Harvest King Distilling Company, sued defendant Express Company to recover damages for the alleged wrongful conversion of 450 packages of intoxicating liquors of the total value of $ 1670.45 which plaintiff delivered to defendant in Kansas City for transportation to various points in the State of Mississippi. The outgoing charges were paid in advance and the packages were sent C. O. D. They were carried by defendant to the respective points of delivery but were not delivered to the consignees. Instead, defendant brought them back to Kansas City and made a conditional tender of them to plaintiffs. The tender was refused and plaintiffs filed this suit which, as stated, is bottomed on the theory of a wrongful conversion of the goods. The answer pleads defenses the nature of which will appear in our statement and discussion of the case. They all rest on the fact that after the shipments were received at Kansas City, but before they could be delivered in Mississippi, a law was enacted in that State which defendant contends made the delivery of the goods impossible. The constitutionality of that law is attacked in the reply filed by plaintiffs. The cause was tried without the aid of a jury on an agreed statement of facts of which the following is the important part:

"III. The defendant at sundry times between April 1, 1906, and May 10, 1906, with knowledge of contents, received from plaintiffs at Kansas City, Missouri, certain packages of intoxicating liquor described in the list attached to plaintiffs' petition on the dates therein named addressed to consignees at various places within the State of Mississippi, and of the value stated in said petition, to-wit: $ 1670.45, and in consideration of the charges prepaid by the plaintiffs, appearing in said list, undertook to transport the same C. O. D. from Kansas City, Missouri, to said consignees at various points within the State of Mississippi. These shipments were made by plaintiffs on signed orders received from the consignees mentioned in said list.

"IV....