Hoyland Flour Mills Co. v. Missouri Pac. R. Co.

• Decision Date: 06 June 1927
• Citation: 5 S.W.2d 125,222 Mo.App. 599
• Parties: HOYLAND FLOUR MILLS COMPANY, APPELLANT, v. MISSOURI PACIFIC RAILROAD COMPANY ET AL., RESPONDENTS. [*]
• Court: Kansas Court of Appeals

5 S.W.2d 125

222 Mo.App. 599

HOYLAND FLOUR MILLS COMPANY, APPELLANT, v. MISSOURI PACIFIC RAILROAD COMPANY ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri, Kansas City

June 6, 1927

Appeal from the Circuit Court of Jackson County.--Hon. Samuel A Dew, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Morrison Nugent, Wylder & Berger for appellant.

R. H Beeson, Hackney & Welch for respondent, Missouri Pacific Railroad Company.

Follanbee, Shorey & Schupp and Lathrop, Morrow, Fox & Moore for respondent, Erie Railroad Company.

BLAND, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is a suit for damages alleged to have been caused plaintiff by reason of defendant's failure to deliver at New York City two carloads of flour shipped in sacks by it from Kansas City, Missouri, to former place. The petition was in two counts, each covering one of the cars. There was a verdict and judgment in favor of plaintiff in the sum of $ 2551.15 on each count. The court sustained defendant's motion for a new trial on the ground that the verdict of the jury was against the weight of the evidence. Plaintiff has appealed.

The facts show that the cars of flour were billed on October 14 and 15, 1921, respectively, by shippers order bills of lading containing substantially the same language. They read in part, as follows:

"Consigned to order of Hoyland Flour Mills Company Destination--New York City, for Export, State of New York . . . Notify--Metropolitan Flour Mill & Grain Co., 330-32 Produce Exchange, at New York City, for Export, State of New York . . . Route MP TSTL&W ERIE RR NEW YORK HARBOR--For Lighterage free for export . . . Allow Inspection by New York Produce Exchange Inspection Department Erie R. R. New York Harbor for Lighterage free for export."

Under these bills of lading the flour could be sold for domestic purposes upon its arrival in New York or be diverted to some other point or loaded on board ship for exportation to a foreign port. If this last occurred, the consignor was required to pay the difference between the domestic and export rate for transportation of the flour from Kansas City to New York, the domestic rate being a higher rate. It seems that it was the custom of plaintiff to ship flour to New York in this way and to decide after its arrival in New York as to what disposition it desired to make of the flour, the flour usually being sold through the Metropolitan Flour Mill & Grain Company, plaintiff's broker in New York City. Plaintiff would draw upon this concern for the value of the flour and attach the draft to the bill of lading to be taken up by the latter when the flour was sold. Plaintiff would notify its broker when the flour was shipped, sending a copy of the bill of lading so that the broker would know that the shipment was on its way.

The cars of flour in question arrived at Croxton, New Jersey, on October 26 and October 28, 1921, respectively. At Croxton was located the breaking up yards of the Erie Railroad; Croxton was three to five miles inland from Weehawken, New Jersey, at which latter point the terminal piers and docks of the Erie Railroad were located. Weehawken is situated upon the west bank of the Hudson River, opposite Manhattan. There is a high ridge of land between Weehawken and Croxton which latter point is situated near the Hackinsack River and west of the former. The yards of the Erie Railroad at the two points are connected by tracks running through a tunnel and over the high ground between the two places. There were no facilities for unloading flour at Croxton. The testimony of defendants' witnesses was that a carload of flour had never been known to be unloaded at Croxton for inspection.

It was the universal custom for shipment of flour under bills of lading, such as the one under which the flour in question was shipped, to be taken by the terminal railroad, the Erie Railroad Company, to one of its docks at Weehawken, usually at dock C, and unloaded, whereupon the right of inspection could be exercised. The evidence shows that where such right was exercised, it was necessary to examine each bag of flour by an instrument called a "tryer" which was inserted into each bag through the covering, and a small amount of flour extracted. Following the arrival of trains at Croxton yards, they would be broken up and cars intended for a specific point, of which there were many in and about New York City, would be made up into a train and sent to their own proper destination. Defendant's witnesses testified that trains were made up at Croxton for Weehawken and taken over to that place as rapidly as practical under the circumstances; that the time of the arrival of cars at Weehawken from Croxton varied according to the rush of business, the weather, etc.; that sometimes these trains did not "go over" for twelve hours; that cars usually got over to Weehawken the same day on which they arrived at Croxton "within twenty-four hours;" that sometimes they would start over in an hour; that it might require several days for them to get to Weehawken but that would not be usual. The time required for the placing of the cars upon a dock after their arrival at Weehawken would also vary.

Immediately upon the arrival of each of the cars in question at Croxton, the Erie Railroad prepared and sent a notice to the Metropolitan Mill & Grain Company, located in New York City proper. As to the first car, the notice, which is substantially the same as the second, reads--

"Arrival Notice. Property described is ready for delivery by The Erie Railroad Co. New York Terminal. Lighterage Dept. Dock C8 Produce Exchange, N. Y. Date 1-26-21 Freight Bill No. Consignee and Address: Hoyland Flour Mill Co. Route: Notify Metropolitan Flour Mill Gr. Co. Prod. Exchange NY. NYExport TSTL Ohio City Way-billed from E. St. Louis, Ill. Way-bill date, and No. 7485 Full Name of Shipper Hoyland Flr. Mill Co. Car Initials and No. N. Y. C. 238381.

"(Stamped) Arrived, Oct. 26, 1921 Croxton, N. J."

The "Arrival Notice" as to the second car was stamped "Arrived, October 28, 1921, Croxton, New Jersey." On the back of each of the notices under the heading of "Special Notice," was printed a statement that the company was not responsible for any loss by fire, etc., occurring more than forty-eight hours (exclusive of holidays) after notice of arrival of the property had been sent or given and that its liability as a common carrier ceased then and the property might at its option be stored at the owner's risk. The Metropolitan Flour Mill & Grain Company acknowledged receipt of these notices upon a printed form headed "Consignee's Receipt of Arrival Notice" by signing its name thereto, giving the date and time of the receipt of each notice. The receipt of the notice as to the first car shipped was dated, 1:05 P. M., October 26, 1921, and as to the second car, 9:40 A. M., October 29, 1921. The record shows that the first car was set out at the Weehawken docks at eight P. M. of October 26 and the second car at eleven P. M. of October 28. The first car was unloaded at Dock C. Weehawken at eleven A. M. of November 3rd and the second at 4:30 P. M. of November 2nd. A fire occurred a few minutes before midnight of November 3rd, destroying a number of docks of the Erie Railroad Company at Weehawken and consuming the flour in question. It was shown that no contract for the sale of any of this flour, either to a foreign or domestic customer, had been entered into at the time it was destroyed by fire. Having received the notices of the arrival of the flour at Croxton, the Metropolitan Flour Mill and Grain Company knew that sooner or later the shipment would be at the docks at Weehawken and the evidence shows that an agent of the Metropolitan Flour Mill and Grain Company, after the fire called up the office of the Erie Railroad to see if the flour had been burned.

It is contended by the defendants that the notices served upon the Metropolitan Flour Mill & Grain Company complied with the requirement of the bills of lading for forty-eight hours' notice of the arrival of the cars at destination and that, consequently, they were holding the flour as warehousemen at the time of its destruction and not as common carrier and that there is no liability to plaintiff in this suit, brought upon the theory of defendants' common-law liability as insurers, no negligence being shown or claimed by plaintiff. In defense to this cause of action, defendants pleaded, among other things, a provision of the bills of lading exempting the carrier from liability.

". . . For loss, damage, or delay caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of the arrival of the property at destination or at port of expert (if intended for export) has been duly sent or given, the carrier's liability shall be that of warehouseman only.

"Sec. 4. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, as the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner's risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage."

Appellate courts do not ordinarily interfere with the discretion vested in the trial court in granting a new trial on the ground that the verdict is against the weight of the evidence....