F. H. Smith Co. v. Louisville & N. R. Co.

• Citation: 157 Mo. App. 160,137 S.W. 890
• Parties: F. H. SMITH CO. v. LOUISVILLE & N. R. CO.
• Decision Date: 02 May 1911
• Court: Missouri Court of Appeals

137 S.W. 890

157 Mo. App. 160

F. H. SMITH CO. v. LOUISVILLE & N. R. CO.

St. Louis Court of Appeals. Missouri.

May 2, 1911.

Rehearing Denied June 6, 1911.

1. CARRIERS (§ 72)—DELIVERY BY CARRIER— LIABILITY FOR FAILURE TO DELIVER.

Where the consignee of three cars, after having paid the consignor for the goods, turned over the bills of lading for two of the cars to defendant carrier as its agent for reconsignment, and retained possession of the bill of lading for the third car, defendant is liable to the consignee for the diversion of the cars at the direction of the consignor and consequent failure to deliver to the consignee, whether the consignee had refused to pay for the goods at one time or not.

2. CARRIERS (§ 94)—DELIVERY BY CARRIER— ACTION FOR FAILURE TO DELIVER — DAMAGES.

The measure of damages in an action by consignee for failure of a carrier to deliver goods, for which the consignee held bills of lading, after a settlement with a consignor, is the value of the goods at the place of consignment less the freight, with interest on the net amount.

3. CARRIERS (§ 94)—ACTION FOR FAILURE TO DELIVER—SUFFICIENCY OF EVIDENCE.

Evidence in an action by a consignee against a carrier for its failure to deliver goods held sufficient to support a verdict against the carrier.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the F. H. Smith Company against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Stewart, Bryan, Christie & Williams and H. R. Small, for appellant. Thomas F. Galt, for respondent.

REYNOLDS, P. J.

This is the second time this case has been before this court, first on appeal of plaintiff, now on that of defendant. The facts in the case, as it was presented on the former trial, are fully set out in the report of the case, under the same title, F. H. Smith Company v. Louisville & Nashville Railroad Company, 145 Mo. App. 394, 122 S. W. 342. We refer to the statement there made as in this last trial the same stipulation of facts on which the case was then submitted was again in evidence, the case not however being submitted, as before, on the stipulation alone. The substantially new and additional testimony while chiefly relating to the settlement said to have been had between the parties on May 31st, goes into the whole transaction somewhat more fully than set out in the stipulation. It will be noticed by reference to the report of the case when here before that the learned trial judge at the former trial did not pass upon the question of the settlement of May 31st, but held that it was immaterial, as the duty rested upon plaintiff to advise the railroad company as to its rights. We did not agree to this, holding that under the facts in the case, that is, that plaintiff, the consignee of the lumber, had in its possession bills of lading for two of the cars in controversy and had turned them over to defendant with directions for reshipment and had in its possession the third bill of lading, in which it was also named as consignee, a bill of lading issued by the initial carrier, of which fact defendant was bound to take notice unless the contrary appeared, having diverted all three of the shipments on the order of the consignor, did so at its own risk and peril, assuming the burden of proof of the fact that the assignments had not been paid for by plaintiff and that title was not in plaintiff, the named consignee; that in obeying the order of the Kennesaw Hardwood Lumber Company to ship to some other consignee, it did so at its peril. We hold that is the correct rule—3 Hutchinson on Carriers (3d Ed.) § 774—although there are some authorities to the contrary. This is so whether defendant held as carrier, warehouseman or by other contract of bailment.

We further held in that decision (loc. cit. 409, 145 Mo. App., 122 S. W. 346), that: "If there had been a settlement on May 31st as to these very cars, then the title on June 6th was in plaintiff and when defendant reconsigned the lumber at the shipper's order it converted it as against plaintiff."

We are confirmed in the conclusion we reached before by the facts as now more fully developed.

In this last trial it appeared that the telegram of May 28th from the consignor to defendant was about as follows: "Hold the cars in question on arrival for us as we are the owner. Do not notify the consignee." While this telegram does not appear in full in the abstract or in the agreed statement of facts, it was stated at the bar, in argument, that it had been lost or mislaid, but that this was its substance. This was not denied by counsel for appellant. We therefore assume that it was in evidence in this last trial. With these words, "Do not notify the consignee," in this telegram, defendant should have been put on its guard as to accepting any order from the consignor without at least some effort to ascertain the facts from plaintiff, consignee named in the bill of lading under and by which it stood liable to that consignee for this lumber. It made no such effort. More than this, it does not appear to us that it treated the plaintiff fairly.

Two of the cars were received by defendant on May 29th. It is not clear when the third reached East St. Louis. The telegram to defendant, above referred to, is dated May 28th and presumably was received on that date. Following out the injunction contained in it, defendant gave no notice of its contents to the consignee, who it knew was the holder of the bills of lading. Not only that, but it not only did not advise plaintiff of the diversion of the shipments, which had been consummated by it on or about June 6th, but when plaintiff asked about them denied that the cars had been received by it. In point of fact, plaintiff did not learn that the delivery to it had been stopped and the shipment diverted until some time in July. Defendant had kept this fact from plaintiff, although all through the intermediate time between May 25th and some time in July, defendant had had the bills of lading of two of the cars, and in the meantime had received that of the third car from plaintiff, accompanied by orders from plaintiff for reconsignment of all three cars. Even when receiving these orders from plaintiff it gave no intimation whatever to plaintiff, so far as the testimony shows, that the cars were not at its order. On the contrary, when along in the first part of July, plaintiff asked defendant's agent why these cars had not come in, he was told by that agent that "they were tracing the cars." This was some time after June 1st; apparently some time after July 6th, this same answer being given to plaintiff on several occasions when its representative went to the railroad office inquiring about what had become of these three cars.

The court asked the president of plaintiff, under examination as a witness, if he had never heard or knew until after July 1st and after the settlement had been made between p...