Davis v. Jacksonville Southeastern Line

• Decision Date: 22 December 1894
• Parties: DAVIS et al. v. JACKSONVILLE SOUTHEASTERN LINE.
• Court: Missouri Supreme Court

28 S.W. 965

126 Mo. 69

DAVIS et al. v. JACKSONVILLE SOUTHEASTERN LINE.

Supreme Court of Missouri, Division No. 1.

December 22, 1894.

ACTION AGAINST RAILWAY COMPANY — SERVICE ON AGENT — CONTRACT OF CARRIAGE — TRANSPORTATION OVER CONNECTING LINE — NONDELIVERY OF GOODS — EVIDENCE.

1. The question whether the court below had jurisdiction to render the judgment may be raised for the first time on writ of error.

2. A freight solicitor in charge of a railway business office is "an officer or agent of such corporation," within Rev. St. 1889, § 2017, providing for service on the corporation by delivering a copy of the summons and complaint to such officer or agent.

3. One with whom a railroad company makes a contract for the shipment of goods may, prima facie, recover for its breach, without showing title to the property.

4. If the railroad company contracts to transport goods beyond the end of its line, it assumes all the duties of a carrier over the connecting line.

5. A complaint alleged that plaintiffs caused to be delivered to defendant certain property in good condition to be carried by defendant over its road to E., and thence to be

forwarded to plaintiffs at L., and that defendant received the goods for said carriage and delivery, but failed to deliver them to plaintiffs in good order. Held, that the words "to be forwarded" import an obligation to assume responsibility for the transportation of the goods from E. to L., and for their delivery to plaintiffs.

6. Where the complaint alleged that goods were delivered to defendant for transportation to plaintiffs in May, 1892, evidence that they were not delivered to plaintiffs at the time of bringing the suit, in January, 1893, will support a finding that the delay was unreasonable.

Error to St. Louis circuit court; John A. Harrison, Judge.

Action by John T. Davis and others against the Jacksonville Southeastern Line for breach of contract. Judgment for plaintiffs, and defendant brings error. Affirmed.

The petition in the cause is as follows: "Circuit Court, City of St. Louis, State of Missouri. February Term, 1893. John T. Davis and Andrew Sproule, Copartners under the name of Samuel C. Davis & Co., Plaintiffs, vs. Jacksonville Southeastern Line, Defendant. Plaintiffs state that they are copartners, domiciled and doing business in the city of St. Louis and state of Missouri, under the firm name of Samuel C. Davis & Co., that defendant is a corporation, organized and existing under the laws of the state of Illinois; that now, and at the times hereinafter stated, defendant was engaged in the business of carrying freight, as a common carrier, over the line of railroad owned and operated by defendant from Pekin, in the state of Illinois, to East St. Louis, in said state; that on the ____ day of May, 1892, the plaintiffs caused to be delivered to defendant, at the town of Pekin, in the state of Illinois, forty thousand (40,000) American A bags, in good condition, to be carried by defendant over its road to East St. Louis, and thence to be forwarded by defendant to plaintiffs, at the city of St. Louis, state of Missouri; that defendant received said bags for said carriage and delivery, but has failed to deliver the same to plaintiffs in good order, whereby plaintiffs were damaged in the sum of six thousand ten dollars and eighty cents ($6,010.80), for which plaintiffs pray judgment, together with interest and costs."

Pollard & Werner, for plaintiff in error. Campbell & Ryan, for defendants in error.

BARCLAY, J. (after stating the facts).

The plaintiffs began the present action, January 19, 1893, in the circuit court, city of St. Louis, upon a petition of which a copy will accompany this opinion. The defendant made default, and took no steps in the action until after the final judgment. The February term, 1893, of the circuit court began on the 6th of that month. On the 16th of February, default for want of answer was entered; and March 30, 1893, the cause was duly called for trial. Upon submission of plaintiffs' proof the court found for them, assessed their damages at $6,010.80, "and 6 per cent. interest from January 19, 1893, the date of the institution of the suit," and gave judgment for the total, $6,080.80. No motion for new trial or in arrest was filed. The writ of error now before us was sued out later by defendant from the supreme court to review the record proper.

Two main errors in it are assigned: The first, that the return of service on the summons is insufficient to confer jurisdiction over the defendant in the action; the second that the petition does not state facts sufficient, etc.

The return in question we shall copy in juxtaposition to the words of the statute by which it is governed:

                     The Return.                           The Statute
                "Executed this writ in the           Section 2017, R. S. 1889
                city of St. Louis, Missouri,         "A summons shall be executed
                on the 20th day of January,          except as otherwise
                1893, by delivering a copy           provided by law. * * *
                of the writ and petition as          Fourth, where defendant is
                furnished by the clerk to A.         a corporation or jointstock
                A. Poland, freight solicitor         company, organized
                of the Jacksonville South-eastern    under the laws of any other
                Line, the within-named               state or country, and having
                defendant, who was                   an office or doing business
                in its business office and had       in this state by delivering
                charge thereof at the time           a copy of the writ
                of said service. The president       and petition to any officer
                or any higher chief                  or agent of such corporation
                officer could not be found           or company, in charge
                in the city of St. Louis,            of any office or place of
                Missouri, at the time of             business, or if it have no
                said service. Fee, $1.00.            office or place of business
                Patrick M. Staed, Sheriff.           then to any officer, agent
                Joseph F. Schermen, Deputy."         or employe in any county
                                                     where such service may be
                                                     obtained," etc
                

1. The question whether the court had jurisdiction to render the judgment it assumed to give, is one which may be raised for the first time upon writ of error. If the trial court was without the lawful power to act upon the defendant's rights, because defendant had not been brought before the court in the mode required by law, the want of power would infect the proceedings with fatal weakness, which might be pointed out, even in a collateral action. For a stronger reason could such a vital blemish be used to get rid of the apparent judgment under appropriate reviewing process; for the judgment itself would be a mere form, and simply null, wherever and whenever called in question in a court of law. Railroad Co. v. Mahoney (1868) 42 Mo. 467.

2. Measuring the return, then, by the requirements of the statute, we see at a glance that the real question is whether service upon a named person, "freight solicitor" of the defendant, in charge of its business office at the time of said service, in the city of St. Louis, is good. Stating the point in a different form, the question is whether a "freight solicitor" in charge of a railway business office is or is not to be held an "officer or agent of such corporation," within the meaning of the law governing the service. The return should receive a reasonable and natural interpretation. It must be fairly construed, and effect be given to its plain intent and meaning. Mikel v. Railroad Co. (1873) 54 Mo. 145; Hill v. Steel Co. (1886) 90 Mo. 103, 2 S. W. 289; Pope v. Manufacturing Co. (1881) 87 N. Y. 137. We do not doubt that "freight solicitor" is a sufficient designation of an agent on whom service may properly be made, when in charge of the defendant's business office. Palmer v. Pennsylvania Co. (1885) 35 Hun. 369; affirmed (1885) 99 N. Y. 679; Talbot v. Railway Co. (1890) 82 Mich. 66, 45 N. W. 1113; In re Hohorst (1893) 150 U. S. 653, 14 Sup. Ct. 221.

3. It is next urged that the petition does not state a cause of action. In the judgment of the writer of this opinion, that point involves an issue of law which should have been submitted first to the trial court to warrant the exercise of appellate jurisdiction by this court by way of review. It is not, however, necessary to repeat the reasons for that view. They have been given already. State v. Scott (1891) 104 Mo. 32, 15 S. W. 987, and 17 S. W. 11; Lilly v. Menke (Mo. Sup.; 1894) 28 S. W. 643. My learned colleagues hold a different opinion on that point of practice, and, in deference to their ruling, the merits of the question now raised by the defendant will be gone into.

4. It is claimed that the petition is fatally deficient in omitting allegations to show that plaintiffs had some kind of property, general or special, in the goods, or that they made the contract of shipment. We think the petition meets the demands of the law in this particular. Possession of personal property is a fact which, unexplained, warrants an inference of ownership, or, at least, of some property in the goods referred to. Plaintiffs had certainly such an interest as...