Danciger v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 04 October 1915 |
| Docket Number | 11677 |
| Citation | 179 S.W. 800 |
| Parties | DANCIGER ET AL. v. ATCHISON, T. & S. F. RY. CO. |
| Court | Kansas Court of Appeals |
Rehearing Denied Nov. 1, 1915.
Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.
“ Not to be officially published.”
Action by Joseph Danciger and others against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed, and cause certified to the Supreme Court.
See also, 179 S. W. 797.
Thomas R. Morrow, George J. Mersereau, and John H. Lathrop, all of Kansas City, for appellant.
I. J Ringolsky and Harry L. Jacobs, both of Kansas City, for respondents.
Plaintiffs, a partnership, under the name of Danciger Bros., carry on a mail order liquor business in Kansas City, Mo. They sue for the loss of six shipments of intoxicating liquor over defendant’s railroad from Kansas City, Mo., to Caney, Kan. The suit began in a justice court, and is in six counts, one for each shipment, all being made under separate shipping contracts. Those in counts 1 and 2 provided that the goods were shipped to the order of Danciger Bros., with a provision in the first 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 of 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, 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. The shipments in counts 1, 4, 5, and 6 were made August 20, 1912, and arrived at Caney, Kan., August 21, 1912. The one in count 2 was made August 21st and arrived August 22d, while the one in the third count was made August 8th, and arrived August 9th. So that all the shipments were transported without delay, and reached Caney the next day after they were shipped.
Caney, Kan., is located within a half 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 introduction. 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. Thereupon the agent wired his superintendent that he had been served with notice from the deputy special officer of the United States (giving his name and the number, date, and signature on his commission) to hold all intoxicating liquor until further notice, and asked for advice quick. At 8:55 the next morning the agent received a telegram from the superintendent which asked if the order applied to all liquor on hand, regardless of territory into which the same was going, and closed by saying: "Handle as per officer’s orders until advised." Shortly thereafter, on the same morning, to wit, the 23d of August, the United States officer appeared at the station in company with the sheriff of Montgomery county, in which Caney is located, and the two officials went into the wareroom and looked over the various liquor shipments that were there, package by package. They took the numbers, and 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; and all packages of liquor the officers found destined for the Indian country were checked and separated from the liquor intended for parties living in Kansas. Then the United States officer got two wagons and hauled away the liquor destined for the Indian country. The liquor going to those residing in Kansas was not molested. After the officer had taken the liquor out of the depot and away from defendant’s premises, he destroyed it.
The suit is bottomed upon the common-law liability of the carrier as an insurer. Each count in the petition alleges that defendant is a common carrier for hire, and that the goods therein mentioned were delivered to it for transportation, and that it neither delivered the goods to the consignee nor returned them to the shippers. The contracts all provide, as hereinbefore stated, for a holding of the liquor a certain number of days, and from this defendant argues that its liability, if any exists at all, is that of a warehouseman, and not that of a carrier. The question would then arise: Did the relation of carrier cease and that of warehouseman begin? If so, when? In the last four counts there is no provision in the contracts requiring the carrier to notify the consignee; while in the first two there is such a provision. There was no delay in the carriage of the goods. They all arrived promptly.
Missouri seems to have adopted the Massachusetts rule (slightly modified) as to the time when a carrier’s liability changes to that of a warehouseman; namely, that when the shipment arrives on time, and the transit is ended, and the carrier has put the goods in its warehouse to await delivery to the consignee, its liability as carrier ceases, although no notice is given to the consignee, and the carrier is thereafter liable as warehouseman only. Gashweiler v. Wabash, etc., R. Co., 83 Mo. 112, 53 Am. Rep. 558; Stanard Milling Co. v. White Line, etc., Transit Co., 122 Mo. 258, 26 S.W. 704; Rankin v. Pacific Railroad, 55 Mo. 167; Cramer v. American Merchants’, etc., Express Co., 56 Mo. 524; Holtzclaw v. Duff, 27 Mo. 395. Our authorities also hold that the time when the liability as carrier will cease may depend upon special contract or a local custom. Gashweiler v. Wabash, etc., R. Co., supra, 83 Mo. loc. cit. 120, 53 Am. Rep. 558; Frank v. Grand Tower, etc., R. Co., 57 Mo.App. 181. Consequently, as to the first two counts, the provision for notification might require notice to be given before the liability as carrier would cease. Again, so far as they, as well as the last four counts, are concerned, our courts hold that the liability of carrier does not cease immediately upon the prompt arrival of goods at their destination, but only after the lapse of a reasonable time for its removal by the consignee. Scott County Milling Co. v. St. Louis, Iron Mountain, etc., R. Co., 127 Mo.App. 80, loc. cit. 92, 104 S.W. 924; Pindell v. St. Louis, etc., R. Co., 34 Mo.App. 675; Bell v. St. Louis & Iron Mountain R. Co., 6 Mo.App. 363.
The evidence seems to show that the consignees did not live in Caney, and hence, except as to the shipment in the third count, the reasonable time allowed the consignees before liability as carrier would cease had not elapsed at the time the officer seized the goods. As to the third count, the defendant had held it more than the ten days required, but, if the agreement to return the goods to shipper at the expiration of the ten days had the effect to reinstate the status of carrier, then defendant cannot claim it was a warehouseman as to it. We do not say that it did reinstate such status, but merely that, if it did so, then even the third count cannot be dealt with on the theory that defendant was merely a warehouseman. We shall, therefore, treat the entire case upon the theory that defendant’s relation to all of the shipments was that of carrier, and not warehouseman.
By the strict rule of the common law a carrier could escape liability for failure to deliver goods received by him for carriage only by showing that such failure was caused by act of God or the public enemy. But "this stringent rule has been modified so as to excuse the carrier from liability where the goods have been taken from his possession by process of law, provided the carrier gives prompt notice of such seizure to his bailor." Kohn v. Richmond, etc., R. Co., 37 S.C. 1, 16 S.E. 376, 24 L. R. A. 100, 34 Am. St. Rep. 726. In Stiles v. Davis, 1 Black, 101, loc. cit. 106, 17 L.Ed. 33, the Supreme Court of the United States say:
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