Herf & Frerichs Chemical Co. v. Lackawanna Line

• Citation: 100 Mo. App. 164,73 S.W. 346
• Court: Court of Appeal of Missouri (US)
• Decision Date: 17 March 1903
• Parties: HERF & FRERICHS CHEMICAL CO. v. LACKAWANNA LINE.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 346

100 Mo. App. 164

HERF & FRERICHS CHEMICAL CO. v. LACKAWANNA LINE.^*

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

CARRIER—CONTRACT OF SHIPMENT—DUTY TO NOTIFY CONSIGNEE—USAGE—LIABILITY OF CARRIER—RIGHT OF RECOVERY—WAIVER OF OBJECTIONS—LAW OF THE CASE—QUESTIONS ON APPEAL.

1. Where, on a prior appeal, the Court of Appeals has held that an objection to a reply as a departure from the petition was waived by a failure to raise the objection by special demurrer or motion to strike out before going to trial, such holding is the law of the case.

2. Where a contract of shipment is made in Missouri between a resident corporation of that state and a carrier having an office and doing business there, such contract is governed by the laws of that state, and the carrier is not required to notify the consignee of the arrival of the shipment if it arrives at the destination on time.

3. Where the uniformly observed usage of the place to which goods are shipped requires the carrier to notify the consignee of the arrival of the shipment, such usage will be binding on the carrier unless its observance is dispensed with by an express stipulation to that effect in the contract of shipment.

4. A local usage of a place to which goods are shipped, requiring the carrier to notify the consignee of the arrival of the shipment, is not dispensed with by a stipulation in the contract

of shipment that the goods are to be called for on the day of their arrival.

5. Where a carrier claimed that it had notified a consignee by mail of the arrival of a shipment, but the persons having charge of the consignee's mail claimed that such notice was never received, and could not be found in the files in which they were always kept, it was a question for the jury whether the notice was actually received by the consignee.

6. Though it may seem to the appellate court that a finding of the jury is against the greater weight of the evidence, yet that court will not set aside a verdict on that ground.

7. Where there was conflicting evidence as to when a carrier had given personal notice to a consignee of the arrival of a shipment, it was a question for the jury if the notice was given in time, and their finding thereon is conclusive.

8. To authorize a shipper to abandon goods and look to the carrier for their value, or compensation for loss on account of deterioration, it must show not only that it was on account of the carrier's negligence that the goods were not delivered in due time, but also that the carrier negligently kept the goods in an unsafe place until they had materially deteriorated.

9. Where a contract was made for the shipment of goods to a place where the established usage was for the carrier to notify the consignee of the arrival of the goods, a failure to give such notice would constitute a breach of the contract.

10. Where a party has elected to try an action as arising out of contract, he cannot insist on appeal that the action sounds in tort.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by the Herf & Frerichs Chemical Company against the Lackawanna Line. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff is a corporation engaged in the manufacture of chemicals in the city of St. Louis. The defendant is an incorporated association doing business as a common carrier. The substance of the petition is that on September 24, 1900, plaintiff delivered to defendant at St. Louis, Mo., and defendant received from plaintiff, for transportation to New York City, to be delivered to Schoellkoph, Hartford & Maclagan (a corporation), a case of chemicals containing subnitrate of bismuth of the value of $381.60, which defendant agreed to transport and deliver, in consideration of certain freight charges paid or to be paid; that, in violation of the contract, defendant failed and refused to carry said goods to New York City, and failed and refused to deliver them to Schoellkoph, Hartford & Maclagan, by reason whereof plaintiff was damaged in the sum of $381.60, for which with interest he prays judgment.

The answer was a general denial and a plea of the following special defenses: That it entered into a special written and printed contract (set forth and quoted) with plaintiff on September 24, 1890, for the transportation of one case of chemicals from East St. Louis to New York City; "that it transported the property described in said special contract in due time and in good order to the city of New York, and that said property remained uncalled for in its possession from the date of its arrival in New York, to wit, on or about the 4th or 6th days of October, 1890, until the 24th day of December, 1890, at which time the defendant, as it lawfully might, sent said property to a storage warehouse, to be stored there at the owner's risk and expense, as provided in said special contract, hereinabove set forth; and that on or about the 22d day of October, 1891, said goods were sold for the freight charges thereon in said storage warehouse in due conformity to law. Wherefore defendant says that plaintiff ought not to have or maintain this action, and, having fully answered, prays to be discharged, with its costs."

The reply admitted the contract as alleged in the answer, and then proceeded as follows: "And, further replying, plaintiff states that the property referred to in said special contract is the same property sued for in this case; that after the arrival of said shipment in New York, and while same was in defendant's possession, plaintiff and its consignees demanded delivery of same from defendants, tendering to it at the time all freight and other charges against said shipment, but defendant, in violation of its duty, failed and refused to deliver said property as demanded. And plaintiff further states: That at the time of the making of said shipment and special contract, and at the time of arrival of said shipment in New York, there existed in New York an established custom of terminal carriers delivering shipments in New York City, and among them of the defendant Lackawanna Line and of the Delaware, Lackawanna & W. R. R. Co., a member of the defendant line, and the last carrier of said shipment, to the effect that upon the arrival, whether on time or not, of shipments for delivery in New York City, they customarily notified consignees of the said arrival and of the location of goods shipped in manner as follows: Where the address or location of the consignees in New York City was below City Hall Park, a first notice was customarily sent by delivering to consignees on, to wit, the day or the day after arrival, a written and printed notice of the arrival and location, by messenger, who took receipts for first notices so delivered, and thereafter, in the event of said shipment not being called for, two further notices were sent by postal cards, mailed to consignees, at intervals of, to wit, three weeks to a month after arrival. That plaintiff's consignees knew and relied upon said custom of defendant and its terminal member of notifying consignees of the arrival of shipments as aforesaid. That the address of consignees in New York City was located below City Hall Park, and was known to defendant and its said terminal member. That, notwithstanding its said custom, defendant, further violating its duty to plaintiff, carelessly failed and neglected upon and after the arrival of said shipment to notify plaintiff's consignees of its arrival and location, as required by said custom. And, further replying, plaintiff states: That on, to wit, November 13, 1890, upon the failure of consignees to receive any notice of arrival, plaintiff requested defendant to trace and locate said shipment so that same might be delivered to plaintiff or its consignees, and thereafter plaintiff repeatedly renewed said request to trace, from time to time; but that defendant, in further violation of its duty, so carelessly and negligently cared for, handled, placed, or stored said shipment, and so failed to use reasonable and ordinary care and diligence in tracing and finding same after its arrival in New York, that it failed to find, locate, and produce said shipment ready for delivery for an unreasonable time, to wit, eight months after the arrival of same at destination, and after plaintiff had requested the tracing, location, and production thereof. That at the time of plaintiff's said request to trace and thereafter said property was and remained in defendant's possession, and might, by the exercise of reasonable care, have been readily located and produced for delivery. That before learning of said arrival, and, to wit, in February, 1891, plaintiff, because of defendant's delay in locating and producing said shipment for delivery, sent other goods to its consignees in place of the goods then in defendant's possession, and plaintiff thereupon demanded from defendant delivery of the goods in its possession, or payment of their value, but defendant failed and refused to deliver them to plaintiff, or to pay therefor. That by reason of defendant's said negligence in failing to notify consignees of arrival, and in failing after arrival to locate said shipment, neither plaintiff nor the consignees learned of the arrival of said shipment at destination until an unreasonable time, to wit, eight months, after its actual arrival, and after plaintiff had requested the shipment to be traced, and that said goods were of a perishable nature, and by reason of said delay were rendered valueless. That by reason of defendant's aforesaid neglect of its duties said goods were lost to plaintiff, and it was damaged in said sum of $381.60, for which, with interest and costs, it asks judgment as prayed." A motion was made by defendant to strike out the whole of the reply. This motion was overruled by the court.

On the trial it was admitted that the shipment arrived at Pier 19, North river, city of New York, on October 6, 1890,...