Gratiot St. Warehouse Co. v. Missouri, K. & T. Ry. Co.

• Decision Date: 30 April 1907
• Citation: 124 Mo. App. 545,102 S.W. 11
• Court: Missouri Court of Appeals
• Parties: GRATIOT ST. WAREHOUSE CO. v. MISSOURI, K. & T. RY. CO.

102 S.W. 11

124 Mo. A. 545

GRATIOT ST. WAREHOUSE CO. v. MISSOURI, K. & T. RY. CO.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. CARRIERS — NEGLIGENCE — CONTRIBUTING NEGLIGENCE—ACT OF GOD.

Where the negligence of a carrier operates as a contributive element proximate to injury to goods, even though such injury is to some extent caused by the act of God, the carrier is liable as though its negligence was the entire cause of the loss.

2. SAME—QUESTIONS FOR JURY.

In an action against a carrier for loss of a shipment of freight, the issue of defendant's negligence held properly submitted to the jury.

3. SAME—PREPAYMENT OF CHARGES—WAIVER.

The right of a common carrier to prepayment of its charges is waived if it accepts the goods for transportation without exacting such payment in advance, and liability attaches as though the freight were actually prepaid.

4. SAME—BILL OF LADING—ASSIGNMENT.

A bill of lading is assignable, such an assignment constituting in the law a complete legal delivery of the goods thereby evidenced to be in the hands of the carrier, as effectually as an actual sale and delivery thereof.

5. SAME—LOSS OF GOODS AFTER ASSIGNMENT— ACTIONS—PROPER PARTIES.

In an action for the loss of goods delivered to a common carrier for transportation occurring after the assignment of the bill of lading and the vesting of the title in the goods to the consignee or the assignee of the bill of lading, such consignee or assignee is a proper party plaintiff.

6. SAME.

A consignor of goods, though he has no property or interest in the goods, is a proper party plaintiff in an action against a carrier for breach of a contract of carriage, on the ground that he has an interest in the contract.

7. SAME—STIPULATION AS TO DAMAGES—VALIDITY.

A stipulation in a bill of lading that the damage shall be computed at the value of the goods at the place and time of shipment is valid when fairly made, even though the loss occurs by the carrier's negligence and the stipulation is not supported by a reduced rate of freight or other special consideration.

8. SAME—INSTRUCTIONS.

Where a bill of lading provided that, in case of loss, the damage should be computed at the value of the goods at the time and place of shipment, and in an action against the carrier the evidence was directed entirely to the value of the goods at the place of destination, defendant was not entitled to a peremptory instruction in its favor; plaintiff being entitled to at least nominal damages for the breach of the contract.

9. APPEAL—QUESTIONS REVIEWABLE.

Where, in an action against a carrier for loss of goods, the parties tried the case on the theory that the damages were to be computed at the value of the goods at the destination and no objection was made by defendant to evidence of such value, although the bill of lading stipulated that the damages should be computed at the value of the goods at the point of shipment, defendant was precluded from contending on appeal that, even though no objection was made to the evidence and no instructions were given on the measure of recovery, plaintiff could not recover, since the general denial in the answer imposed on plaintiff the burden of establishing the value of the goods at the point of shipment, which it failed to do.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by the Gratiot Street Warehouse Company against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The suit is for the value of a car load of corn which, while under contract of affreightment, was damaged and practically destroyed by means of the high water resulting from the overflow of the Mississippi river, June, 1903. The material facts are: Plaintiff, a dealer in and shipper of grain, having an order for a car of corn from a customer in Texas, delivered the laden car to the Wiggins Ferry Company for the purpose of delivering the same to the defendant railroad company on June 3, 1903, received from the ferry company a receipt therefor, and on the same date, June 3d, at about 1 o'clock p. m., the plaintiff delivered this receipt to the defendant's proper agent at and in charge of its commercial office, Broadway and Chestnut streets, St. Louis, and contracted with the defendant, through said agent, for the shipment of the car, shipper's order consigning the same to itself (the plaintiff) at Wichita Falls, Tex., with directions to notify E. G. Rall, he being plaintiff's customer for such corn, at which time defendant's commercial agent, upon the surrender by plaintiff to him of the Wiggins Ferry Company's receipt evidencing the car then in the ferry company's custody, issued in duplicate two bills of lading therefor, the original of which was delivered to plaintiff and the copy retained by defendant's said agent. The bill of lading then issued and delivered to plaintiff, and under which the car was shipped, is dated June 3, 1903, and covers 56,000 pounds bulk corn then contained in this car, marked "M., K. & T. R. R. No. 11747," and provides for its carriage over defendant's and connecting lines to Wichita Falls, Tex., at the rate of 22½ cents per hundredweight. As said before, the shipment was made by the plaintiff to itself, it being both consignor and consignee, marked, "Shipper's order, notify E. G. Rall." The bill of lading introduced in evidence bears the stamp of the defendant's transit inspection bureau, June 3, 1903, and, among other things, contains the following provisions: "It is understood as a part of the conditions under which said packages are received that neither this railway company, nor any other carrier, shall be liable * * * for any loss or damage occasioned by riots, strikes, the acts of God or the public enemy" —and provides that, in event of loss or damage to the property (the corn) therein mentioned, "the amount of loss or damage shall be computed at the value or cost" of such corn "at the place and time of shipment." The car of corn never reached the destination mentioned. On June 5th it was still in the defendant's yards, immediately adjacent to the Mississippi river in North St. Louis, and was so damaged by the high waters of that date as to be practically destroyed. The principal defense interposed and relied upon to defeat plaintiff's recovery is that the damage resulted from the act of God, by the sudden and unexpected inundation of defendant's yards, by reason of the extreme high water of June 5th. It will be observed by reference to the clause of the bill of lading above quoted that the defendant is not liable for loss or damage resulting from the act of God.

The plaintiff having made a prima facie case by the introduction of the bill of lading and oral testimony in support of the allegations of its petition, the defendant sought to bring itself within the exception in the bill of lading referred to, and, in order to escape liability under this provision of its contract, showed, first, that although the bill of lading was issued by it to plaintiff on June 3d at about 1 o'clock p. m. the car, in fact, was not placed in its yards by the Wiggins Ferry Company until 1:25 p. m. on the following day, June 4th, and that, when the car was thus actually placed in its charge, there was no "card" accompanying the same, showing its destination, nor did any shipping instructions accompany the car from the ferry company, and, in the absence of this card or shipping instructions, the car was placed on the holdover track by defendant's yardmen, awaiting the necessary billing and instructions, in the usual course, from its commercial office, and that such billing and instructions were not received by those in charge of the yard office until the morning of June 5th, on which date, at about 11 o'clock a. m., the yards became so completely inundated as to enforce a suspension of the work of removing the cars therefrom, and that for the reason no card or instructions accompanied the car on June 4th when received from the ferry company, and none were communicated from its commercial office to the yard office until the morning of June 5th, it was impossible, by the exercise of ordinary endeavor and diligence in that behalf, to remove the car from its perilous situation before the inundation became of such proportions as to render it wholly impossible. By Mr. Bowie, the officer in charge of the United States Weather Bureau at St. Louis, the defendant showed the high water which occasioned the loss to have been of an extraordinary character, so much so as to on June 10th exceed any stage of the river since the year 1844. Witness gave testimony with respect to the comparative statement of the several highwater stages for many years at St. Louis from the records in his office, from which testimony the following table is taken:

                Flood of 1844, high-water mark  .....41.4 ft
                  "   "  1857,  "     "    "    .....37.1 ft
                  "   "  1892,  "     "    "    .....36.  ft
                  "   "  1903,  "     "    "    .....38.  ft
                

His record also showed for the several days, including the date of the shipment involved, just prior thereto and immediately thereafter, the stage of the water, as ascertained about 6:30 each morning and 6:30 each evening, as follows:

                May 31st ....................25.6 ft
                June 1st ....................27.8 ft.
                 "    2d ....................29.9 ft.
                 "    3d ....................31.2 ft.
                 "   4th ....................32.8 ft.
                

On the morning of June 5th, the high-water mark was 33.5 feet, and the evening of the same day 34.2 feet. It reached its highest stage of 38 feet on June 10th, after which it gradually receded. It was also shown by this witness that his office issued daily bulletins from May 29th, each day, prior to and including the days involved in this controversy, predicting a continual rise in the river at this point, as above indicated, and that these bulletins were daily published in the morning and afternoon papers of the...