Darlington v. The Missouri Pacific Railway Company

• Decision Date: 09 December 1902
• Citation: 72 S.W. 122,99 Mo.App. 1
• Parties: EVANS R. DARLINGTON et al., Respondents, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

72 S.W. 122

99 Mo.App. 1

EVANS R. DARLINGTON et al., Respondents, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 9, 1902

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

REVERSED AND REMANDED.

STATEMENT.

The petition is as follows:

"The plaintiffs, Evans R. Darlington, James G. Berryhill and Samuel L. Berryhill, state that they are partners, and as such are engaged in the lumber business under the firm name and style of E. R. Darlington & Co.; that the defendant, the Missouri Pacific Railway Company, is a railroad company organized and incorporated and operating a railroad under the laws of the State of Missouri.

"Complaining of said defendants, the said plaintiffs, for first cause of action, aver that heretofore, on or about December 16, 1901 at the city of St. Louis, aforesaid, the said defendant, with force and arms, without leave wrongfully seized, took and carried away certain of the goods and chattels of plaintiffs and then in the possession and control of plaintiffs, to-wit: 1,600 feet of sixteen-foot white pine lumber of the value of $ 40; 13,277 feet of white pine boards of the value of $ 338.56; 561 feet clear fir flooring of the value of $ 28.05; 28 feet clear fir flooring of the value of $ 1.19; 4,888 feet clear fir flooring of the value of $ 195.52; being of a total value of $ 603.32, and converted the same to its own use, and other wrongs to the plaintiffs then and there did, against the peace of the State of Missouri and to the actual damage of plaintiffs in the sum of $ 700; that said taking was wrongful, by force, malicious and oppressive.

"Wherefore plaintiffs demand judgment for seven hundred dollars, the actual damage as aforesaid, and also for three thousand dollars as punitive damages, together with costs."

The answer was a general denial.

The evidence is that the Merchants' and Manufacturers' Railroad Warehouse Company, a corporation, is the owner in fee of a strip of ground, about five hundred feet north of Chouteau avenue in the city of St. Louis, and abutting the Missouri Pacific Railroad Company's right of way and running parallel with it for a distance of about two thousand feet. In the summer of 1891 an arrangement was agreed to between the Merchants' and Manufacturers' Railroad Warehouse Company and the Missouri Pacific Railroad Company, whereby the railroad company built a switch track on and along the strip of land where it abuts the railroad right of way and connected it at each end with its own sidetrack. The railroad company bore the expense of constructing the switch and the Merchants' and Manufacturers' Railroad Warehouse Company paid for the rails and other material used in the construction of so much of it as is located on its land.

In February, 1896, the Merchants' and Manufacturers' Railroad Warehouse Company leased to the plaintiffs for a term of six years, one hundred and eighty feet of the larger strip with the right to use the entire switch on its premises with other tenants of the lessor.

Plaintiffs are wholesale and retail dealers in lumber. Their lumber is received in carload lots and they generally had their cars consigned and billed to the defendant, who, on their arrival in the city of St. Louis, would take charge of the cars so consigned and place them on the switch in plaintiff's yards.

On December 12, 1901, defendant received from its connections two carloads of dressed lumber for delivery to plaintiffs, one from Portland, Oregon, the other from Chippewa Falls, Wisconsin. On the same day at about eleven o'clock, a. m., the defendant placed these cars on the switch in the Darlington company's yards to be unloaded by plaintiffs. Plaintiffs paid the freight charges and unloaded a part of the lumber. About noon on December 16, 1901, defendant's demurrage clerk, finding the two cars partially unloaded, presented plaintiffs a bill for two dollars demurrage charges on the cars. Darlington, one of the plaintiffs, to whom the bill was presented, called up the chief clerk by telephone, in the office of the railroad company, with whom he said the plaintiffs usually did business and held a telephonic conversation with him about the demurrage charges. His evidence of the conversation is, in substance, as follows:

"I told him that the lumber in the cars was our property; that we had paid for it; that we had paid their charges, and that we owed them nothing on it, and that I would not pay these car-service charges because they were unjust, as we had not time to unload them, owing to the bad weather. Well, we had some talk back and forth. He said that he would have to order the cars out unless I paid the charges. Well, I said, as a compromise, I will do this: I will pay these charges if you will promise to refund them. You have a car-service rule which permits the refunding of carservice charges on account of bad weather; and, I said, we certainly had bad weather; there is no question about that, and if you will just say that you will refund these charges, I will pay the young man the two dollars, and we will let it go; and you can make a refund later and we will unload the cars. He said, 'No, I won't promise that; you will have to pay the two dollars or we will take the cars out.' Well, I told him that he had no right to take the cars out; it was my property; it was in my possession; it was on my property, and he had no right to come in there and take them out without my consent."

Witness then testified that the next thing he knew relating to the transaction was that about noon one of the switch engines of the Missouri Pacific Railway Company, with a crew consisting of an engineer, fireman and two switchmen, came onto plaintiffs' switch, backed down to the two cars and hauled them off, they containing the lumber described in the petition belonging to plaintiffs, and hauled it away, and that he had not seen the lumber since. The engine came over the Darlinton switch and track, and into the Darlington yard. Witness went down and told the switch crew that they must not take the cars, that they had no right to do so, and he did not want them taken, that he wanted to finish unloading them. At first the man in charge of the crew said he was coming in there to pull some cars down below; he would not tell witness whether or not he was going to take the cars with the Darlington lumber; could hardly get any answer from him as to what he was going to do, although witness insisted on knowing. Witness stood on the track, protesting against the entry or removal of the cars, but the engine kept backing down on him and it got so close to him that that he had to jump or be run over. He jumped. When he got off the track the engine kept on down to where the cars were; coupled on to them, pushed them out and away. All this occurred inside of the Darlington lot, on the plaintiffs' switch, about noon, Monday, December 16, 1901.

It is conceded that defendant and their railroad associates have car-service rules, one of which is, when freight in carload lots is to be unloaded by the owner or consignee he is allowed forty-eight hours, excluding Sundays, in which to unload the car after it is set in place for that purpose; that after the lapse of forty-eight hours from the time the car is placed for unloading, the railroad company charges as demurrage $ 1 per day per car for each day the car remains unloaded, and that plaintiffs were familiar with the rule.

On the back of the bill of lading for the Chippewa Falls shipment was the following:

"All carload freight shall be subject to a minimum charge for trackage and rental of one dollar per car for each twenty-four hours detention or fractional part thereof after the expiration of forty-eight hours from its arrival at destination, and after the expiration of seventy-two hours this company shall be at liberty to unload and store the freight in a warehouse of its own or unload and deliver to a warehouseman. And the consignor or consignee shall pay the C. M. & S. P. Railway Company the expense of unloading and ware-housing same, and for such expense this company shall have a lien upon the freight in addition to its own freight charges and back charges."

This car was consigned to plaintiffs.

On the Portland bill of lading is the following:

"It is expressly understood and agreed that shipments of carload or less than carload freight, requiring the entire use of a car, will be subject to demurrage, in accordance with the current rules and regulations of the company delivering the said goods at points of destination, in case such car is detained over forty-eight hours in loading or unloading."

This car was consigned to defendant. Plaintiffs never saw either of these bills until offered in evidence by the defendant.

Plaintiffs offered evidence tending to show that from the Friday morning the cars were placed until Saturday noon it was raining continuously and was so extremely cold that their men could not work and unload the lumber and haul it to their sheds. There was countervailing evidence to the effect that it did not rain and that plaintiffs' men were at work unloading other cars, which had come in before the two in question.

At the close of the evidence the defendant offered an instruction in the nature of a demurrer to the evidence, which the court refused.

Defendant then offered six other instructions in line with the following:

"The court instructs the jury, that if you believe from the evidence, that prior to the arrival of the lumber in controversy, at St. Louis, defendant had adopted a rule, that consignees of carload freight would be allowed forty-eight hours' free time, after setting of the car on the switch for...