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

[28 S.W. 966]

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...