Danciger v. Atchison, T. & S. F. Ry. Co.

• Citation: 212 S.W. 5
• Decision Date: 16 May 1919
• Docket Number: No. 19508.,19508.
• Court: United States State Supreme Court of Missouri
• Parties: DANCIGER et al. v. ATCHISON, T. & S. F. RY. CO.

212 S.W. 5

DANCIGER et al. v. ATCHISON, T. & S. F. RY. CO.

No. 19508.

Supreme Court of Missouri, in Banc.

May 16, 1919.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Joseph Danciger and others against the Atchison, Topeka & Santa Fé Railway Company. From judgment for plaintiffs, defendant appealed to the Court of Appeals, which reversed, and certified the case to the Supreme Court (179 S. W. 800). Affirmed.

Plaintiffs, as partners, doing business under the firm name and style of "Danciger Bros. and Harvest King Distilling Company," filed in a justice court, in Kansas City, Mo., a petition, in six counts, against defendant, as a common carrier, on account of its alleged failure to deliver certain liquors intrusted to its care, etc. No answer or other pleading was filed by defendant, in either the justice or circuit court.

Plaintiffs sue for the loss of six shipments of intoxicating liquor from Kansas City, Mo., to Caney, Kan. Each shipment was under a separate contract. Those in counts 1 and 2 provided that the goods were shipped to the order of Danciger Bros., with a provision in the first contract that the carrier should "notify Raymond Edwards," and in the second that it should "notify Tom Brown." In the other four contracts, the goods were consigned directly to the respective persons named therein, with no provision requiring the carrier to notify any one. All the contracts provided that the carrier should hold the goods a certain number of days after arrival at destination, and, if not accepted in that time, they were to be returned to shipper. In the first three contracts this period was 10 days, and in the last three it was 15 days. In the first two contracts, those in which the goods were sent to shipper's order, the surrender of the original bill of lading, properly indorsed, was required before delivery. The conditions on the back of all of them provided that the carrier should be liable for any loss of the goods, except that "caused by the act of God, the public enemy, quarantine, the authority of law," etc. All of the shipments were transported without delay, and reached Caney the next day after they were shipped.

Caney, Kans., is located within half a mile or three-quarters of a mile of the "Indian country" in Oklahoma. The United States laws for the suppression of the liquor traffic among Indians and in the Indian country were very stringent, and the government was actively engaged in the enforcement thereof. On the evening of August 22, 1912, a deputy special officer of the United States Indian Service, engaged in the suppression of the liquor traffic, discovered the liquor covered by the shipments in question, together with a large number of other liquor shipments, in the wareroom of defendant's station at Caney. He informed the station agent that he was a United States officer, told him the business he was engaged in, and asked the agent if he knew the consignees of the liquor, where it was destined, and whether or not it was going into prohibition country in Oklahoma. The agent, not knowing any of the consignees or persons to be notified, nor where they lived, told the officer he did not know where the liquor was going. Thereupon the officer demanded that he hold the liquor until investigation could be made as to its intended destination. The agent asked for his credentials, and the officer showed him his appointment and commission, and served written notice on him directing the agent to hold all liquors in his possession until further notice from the officer. The sheriff of Montgomery county, Kan., had been called by the above officer to assist in making the investigation in regard to said liquors.

Thomas E. Sisson, the government officer above mentioned, was not present at the trial; but his deposition, taken by defendant, was read in behalf of plaintiffs. Among other things he testified that on August 22, 1912, he asked defendant's agent (Trower) in charge of the goods for the freight bills; that he thereafter wrote "confiscated" on the originals and took the copies; that he kept the bills for that portion that was "confiscated." Thereupon the agent wired his superintendent that he had been served with notice by above officer (giving his name, as well as the number, date, and signature on his commission) to hold all intoxicating liquor until further notice, and asked for quick advice. At 8:55 on the morning of August 23, 1912, the agent received a telegram from the superintendent, which asked if the order applied to all "booze" on hand, regardless of territory into which the same was going, and closed by saying: "Handle as per officer's orders until advised."

On the morning of August 22, 1912, the United States officer appeared at the Caney station, in connection with the sheriff aforesaid, and the two officials went into the wareroom, looking over the various liquor shipments that were there, package by package. They took the numbers, went over the names of the consignees, or persons to whom notification was required, with particular reference to whether the parties to whom the liquor was sent lived in the Indian country of Oklahoma or in Kansas. The evidence tends to show that all packages of liquor found by the officers destined for the Indian country were checked and separated from the liquor intended for parties living in Kansas; that the United States officer got two wagons and hauled away the liquor said to be destined for the Indian country; that the liquor going to those who resided in Kansas was not molested; that after the United States officer had taken the liquor out of the depot, and away from the defendant's premises, he destroyed it in the state of Kansas.

Such other facts as may be necessary will be considered later.

The case was tried by the court without a jury and without instructions. On December 5, 1914, the court found in favor of plaintiffs as to each count, specifying the amount, and rendered judgment for the total sum of $559.27. Defendant, in due time, filed its motion for a new trial, which was overruled, and the cause duly appealed by it to the Kansas City Court of Appeals. The latter, in an opinion by Judge Trimble, in which all the members of said court concurred, reversed the judgment of the trial court, and certified the case Do this court on account of a different conclusion having been reached, as to some of the questions of law involved, by the Springfield Court of Appeals, in Fehrenbach Wine Co. v. Atchison, Topeka & Santa Fé Ry. Co., 182 Mo. App. 1, 167 S. W. 631.

The opinion of Judge Trimble in the case at bar is reported in 179 S. W. at page 800 and following.

Thomas R. Morrow, George J. Mersereau, and John H. Lathrop, all of Kansas City, for appellant.

Ringolsky & Friedman and Harry L. Jacobs, all of Kansas City, for respondents.

BAILEY, C. (after stating the facts, as above).

1. The main controversy in this case arises over the construction which should be placed upon section 2140 of the Revised Statutes of the United States (U. S. Comp. St. § 4141), which reads as follows:

"If any * * * subagent * * * has reason to suspect or is informed that any white person or Indian is about to introduce or has introduced any spirituous liquor * * * into the Indian country in violation of law, such * * * subagent * * * may cause the * * * packages, * * * of such person to be searched and if any such liquor is found therein, the same, * * * and also the * * * packages, * * * of such person, shall be seized and delivered to the proper officer," etc.

In Fehrenbach Wine & Liquor Co. v. Atchison, Topeka & Santa Fé Ry. Co., 182 Mo. App. 1, 167 S. W. 631, and following, the Springfield Court of Appeals had under consideration substantially the same facts as are presented in the case at bar. Judge Sturgis, delivered the opinion of the court, and in construing section 2140 of the federal law, supra, cited, with approval and in support of the conclusion reached by him, the cases of Evans v. Victor, 204 Fed. 361, 122 C. C. A. 531, Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471, and Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201. On pages 6 and 7 of 182 Mo. App., on page 632 of 167 S. W., in referring to the facts, he said:

"The evidence shows that the town of Caney is in the state of Kansas, but near...