Dunne & Grace v. St. Louis & S. W. Ry. Co.

• Decision Date: 02 July 1912
• Court: Missouri Court of Appeals
• Parties: DUNNE & GRACE v. ST. LOUIS & S. W. RY. CO.

148 S.W. 997

166 Mo. App. 372

DUNNE & GRACE v. ST. LOUIS & S. W. RY. CO.

St. Louis Court of Appeals. Missouri.

July 2, 1912.

1. CARRIERS (§ 105)—DELAY IN SHIPMENT— LIABILITY FOR CONSEQUENTIAL DAMAGES.

The carrier, not having been informed of the shipper's intention to transport the goods for the purpose of a sale thereof at a certain time, which he had advertised, is not liable, because of its delay in transportation, for the consequential damages of loss of profits from such sale, even are they not too remote and speculative.

2. CARRIERS (§ 35)—ESTABLISHED RATES— CONTRACTS FOR LESS.

A shipper is properly required to pay the full freight rate, established under the interstate commerce law (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), though the carrier has through mistake contracted to carry at a lesser rate.

3. CARRIERS (§ 202)—OVERCHARGE BY CONNECTING LINE—LIABILITY OF INITIAL CARRIER.

Where plaintiff contracted with defendant for transportation of a car, to be taken over its line to a certain point, and there delivered to a connecting carrier to complete the transportation, and at destination the connecting carrier, without having advanced to defendant its charges, collected an excessive amount to cover the freight charges of both, asserting, as to the entire sum, the lien of both, defendant, by reason of the wrongful use by the connecting carrier of the agency which defendant gave it by delivery of the shipment to it without requiring an advancement of the then accrued freight, became liable for the excess collected, though it was retained by the connecting carrier.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by Dunne & Grace against the St. Louis & Southwestern Railway Company. Judgment for plaintiffs. Defendant appeals. Reversed and remanded, with directions.

S. H. West and Roy F. Britton, both of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant. W. A. Anderson, of Wickliffe, Ky., for respondents.

NORTONI, J.

This is a suit for damages alleged to have accrued on account of defendant's breach of its obligation to transport plaintiffs' goods within a reasonable time and to recover an excessive freight charge wrongfully exacted. Plaintiffs recovered, and defendant prosecutes the appeal.

The suit originated before a justice of the peace and found its way by appeal into the circuit court, where it was tried without a jury. The complaint sets forth, and the evidence tends to prove, that plaintiffs, copartners, owned and operated a business at Wickliffe, Ky., where they retailed wagons, buggies, etc. They had recently purchased a secondhand stock of wagons and buggies and had been closing them out at Paragould, Ark., but desired to ship the remnant of such stock from that point to their store at Wickliffe, Ky., for the purpose of making a sale during the session of the circuit court at that place. Plaintiffs applied to defendant's freight agent at Paragould, Ark., for a through rate from that point to Wickliffe, Ky., for a car of wagons and buggies, and was advised that defendant would transport the same at 35 cents per hundredweight to destination. Upon this representation, plaintiffs made the shipment at the rate mentioned, but it involved the passing of the car over two railroads, as defendant's line did not enter Wickliffe, Ky. The contract of shipment contemplated that the car laden with the goods should be transported by defendant to Cairo, Ill., and there delivered to the Illinois Central Railroad Company to complete the transportation to Wickliffe. The distance between Paragould, Ark., and Wickliffe, Ky., via Cairo, Ill., is about 110 miles, and the transportation should have been completed within some two or three days. The car was shipped from Paragould on April 8th, but was delayed in transit so that it did not reach Wickliffe, Ky., until the 19th of that month. As before said, plaintiffs had advertised a sale of wagons and buggies at Wickliffe, Ky., during the session of the circuit court during which, it is said, a considerable number of prospective buyers assemble there. Because of the delay in the transportation, the wagons and buggies did not arrive in time for the sale intended, and plaintiffs therefore lost the profits of the sale, at least for the time being. The loss of the contemplated profits on this proposed sale is the damages sued for as a result of defendant's failure to observe its obligation to transport the goods within a reasonable time. Indeed, Mr. Dunne, one of the plaintiff partners, and the only one who testified, specifically disclaims any damages touching this matter save the loss of profits above mentioned.

The court refused to declare that such damages were too remote and conjectural for recovery on the proof made and gave judgment for plaintiffs to the contrary. In this, an erroneous conception of the law prevailed, for the evidence is conclusive that plaintiffs did not inform defendant, at the time the contract of shipment was entered into, or at any other time, for that matter, that they were shipping the goods with the purpose of disposing of them at such sale or for any particular purpose whatever. It may be that such contemplated profits were not so remote and conjectural as to render them incapable of ascertainment and recovery had the purpose of the shipment been disclosed when contracted. It is...