Keithley & Quinn v. Lusk

• Decision Date: 20 November 1916
• Docket Number: No. 1917.,1917.
• Citation: 189 S.W. 621,195 Mo. A. 143
• Parties: KEITHLEY & QUINN v. LUSK et al.
• Court: Missouri Court of Appeals

189 S.W. 621

195 Mo. A. 143

KEITHLEY & QUINN v. LUSK et al.

No. 1917.

Springfield Court of Appeals. Missouri.

November 20, 1916.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by Keithley & Quinn against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad. Judgment for plaintiffs, and defendants appeal. Affirmed.

See, also, 190 Mo. App. 458, 177 S. W. 756.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellants.

STURGIS, J.

This is the second appeal in this case, and we refer to 190 Mo. App. 458, 177 S. W. 756, for a more detailed statement of the facts. On the former trial the court sustained a demurrer to plaintiffs' evidence, and directed a verdict for defendants. We reversed and remanded the case, holding that plaintiffs' evidence tended to show that their carload of apples shipped from Burnham, Mo., to Clarendon, Ark., was damaged in transit by the fault of defendants as initial carrier, or of the Cotton Belt as connecting and terminal carrier, or by both, in not keeping open the ventilators in the car; that the evidence then presented also tended to prove that defendants are liable for the negligence of the connecting carrier as well as its own negligence in this respect, on the ground that defendant undertook a through shipment of the car of apples to Clarendon, whether such undertaking was initial at the time and place of receiving the car, or by way of enlarging and extending its contract at or before the car reached the terminus of defendants' road at Jonesboro, Ark.

On a retrial of this case on the same pleadings plaintiffs' evidence is the same as before, and defendant did not attempt to disprove either the fact or cause of plaintiffs' damage. On a trial without a jury the court found for plaintiffs. As on the former trial, the evidence does not clearly show when the ventilators were closed, and defendant maintains that nothing more is shown as to which carrier was negligent than that the apples were properly loaded at Burnham, Mo., with ventilators then open, and that on their arrival at Clarendon, four days later, the ventilators were closed and the apples rotting and badly damaged. The defendants, as initial carrier, rely on the rule of law that under such facts the presumption is that the damage was done by the last carrier, the Cotton Belt, and that defendants cannot be held liable under the facts as now presented for the negligence of such connecting carrier. We note, however, that the evidence now does show that the car of apples was in defendants' possession three of the four days in transit, being delivered by it to the Cotton Belt less than twenty-four hours before the car arrived at Clarendon in bad condition, and our observation is that good apples do not rot to any great extent in one day, even if in an air-tight inclosure. The evidence also shows that this car was needlessly delayed at Jonesboro for at least two days because the defendants' agent there was demanding excessive freight.

We may also here remark that the law and courts, both state and federal, favor the making and interpretation of contracts for shipments over connecting carriers as being for through shipment, and making the initial carrier with whom the contract is made liable for all damage whether caused by such initial carrier or connecting carrier. This is rightly so, as illustrated by the present case, since it is almost impossible for a shipper, who parts with his property in good condition and, having no control over or knowledge of it during transit, finds it damaged when delivered to him at the end of a long journey, to ascertain the exact time and place of the injury or by which carrier inflicted. Moreover, to sue a connecting carrier often necessitates going to a foreign jurisdiction to do so.

The evidence introduced at this trial by defendants is that of its agent at Burnham, the initial point of shipment and its agent at Jonesboro, the terminus of defendants' road. This evidence has to do solely with the contention of defendants that it transported the apples under its bill of lading from Burnham to Jonesboro only, where the car was reconsigned over the Cotton Belt to Clarendon, and that consequently it is not liable for any damage done on or by that road. We do not think the evidence conclusively so shows, and we are not concerned with its weight. According to the evidence when viewed most favorably for plaintiffs, the fact remains that plaintiffs made known to defendants' agent at Burnham that they desired to ship this car of apples to Clarendon, Ark.; that both parties knew that defendants' road only extended to Jonesboro, Ark., and that from there the car would go over the Cotton Belt; that defendants' agent gave plaintiffs the through rate and told them that the freight could be paid at Clarendon, which was done; that defendants' agent instructed plaintiffs to have the car billed to Jonesboro, and that defendant would then rebill the car from there and send it on to Clarendon and the freight could be paid there. Defendants' agent at Burnham, while testifying that he billed the car only to Jonesboro because plaintiff said to do so after he had explained the tariffs, rates, reconsignment, etc., also says...