Keithley v. Lusk

• Decision Date: 04 June 1915
• Docket Number: No. 1514.,1514.
• Citation: 190 Mo. App. 458,177 S.W. 756
• Parties: KEITHLEY et al. v. LUSK et al.
• Court: Missouri Court of Appeals

177 S.W. 756

190 Mo. App. 458

KEITHLEY et al. v. LUSK et al.

No. 1514.

Springfield Court of Appeals, Missouri.

June 4, 1915.

Rehearing Denied June 24, 1915.

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

Action by W. M. Keithley and another against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

J. N. Burroughs, of West Plains, for appellants. W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for respondents.

STURGIS, J.

This action is prosecuted to recover damages alleged to have been suffered by negligence of defendants, as receivers of the St. Louis & San Francisco Railroad Company, in transporting a car of apples. The trial court directed a verdict for defendants, and plaintiffs have appealed from the judgment thereon.

The petition alleges that the plaintiffs delivered to the defendants at Burnham, this state, the car load of apples to be transported to Jonesboro, Ark.; that it was agreed with the agent of defendants at Burnham that the car should be billed to Jonesboro, and there rebilled to Clarendon, Ark.; that upon the arrival of the car at Jonesboro the defendants failed and refused to deliver it to the plaintiffs or to the connecting carrier for transportation to said Clarendon, but held the apples for two days before delivering them to said connecting carrier; that defendants finally undertook by oral agreement and waybill issued by them to transport the car over the connecting carrier to Clarendon; that the defendants negligently and carelessly permitted the ventilators on said car to become closed or permitted them to remain closed while in their possession, and that by reason thereof the plaintiffs sustained damages in the sum of $400. The answer is a denial, and sets up certain provisions of the bill of lading relative to notice of loss and the basis of computing damages.

Speaking of the railroad managed by the receivers as the defendant, the salient facts with reference to the shipment in question are these: The plaintiffs desired to ship a car load of apples from Burnham, Mo., a point on defendant's railroad, to Clarendon, Ark., a point on the Cotton Belt or St. Louis & Southwestern Railway Company's road. The plaintiffs made this fact known to defendant's agent at Burnham, and asked for the freight rate on such car to such point. The rate was given by defendant's agent at Burnham as 31 cents per hundred. The defendant then provided a car for plaintiffs' use, and same was loaded with apples and accepted by defendant for shipment.

This is what plaintiff Keithley says occurred at Burnham:

"Q. To what point were you seeking to ship this car? A. I was intending to take it to Clarendon, Ark. The agent at Burnham instructed me to bill to Jonesboro, and he said we could pay the freight at destination at Clarendon, Ark. Re gave us the tariff as 31 cents per hundred through to Clarendon; said we could bill to Jonesboro, and that the Frisco would rebill the car from there and send it on to Clarendon, and that the freight could be paid there."

The bill of exceptions shows a "shipping order" issued by defendant's agent at Burnham, Mo., for the property, designating same as "bulk G. apples." This shipping order recites:

"For use in connection with the standard form of straight bill of lading approved by the Interstate Commerce Commission by Order No. 787 of June 27, 1908."

It contains certain stipulations on the back thereof relative to the basis of computing loss or damages and as to giving notice of any claim for loss or damages, which defendant alleges to be in the bill of lading. It will be taken for granted that the bill of lading was issued and conforms to this shipping order. Nothing further is shown in this record as to any other bill of lading being issued or its contents. The shipping order designates the point of destination as Jonesboro, Ark., a junction point of the defendant's road and the Cotton Belt. When the car in question reached Jonesboro,. Ark., one of the plaintiffs saw defendant's agent there and tried to pay the through freight from Burnham, Mo., to Clarendon, Ark., but the agent there informed him that the rate was much higher than that given plaintiffs by the agent at Burnham, and demanded about twice that amount. The plaintiffs, not having the ready money to pay the amount demanded at Jonesboro, had to go to another town to procure it. This caused a delay of two days. Defendant's agent at Jonesboro, although plaintiffs then had the amount he demanded for the through freight and offered to pay it, finally agreed to have the car forwarded to Clarendon and let the agent there determine the through rate and the amount of freight due. The car then went forward over the Cotton Belt road and plaintiffs paid the freight at Clarendon for the through shipment from Burnham to that point. Plaintiffs say the amount so paid was the rate and amount named by defendant's agent at Burnham, and not that demanded by defendant's agent at Jonesboro. Plaintiffs never dealt with the Cotton Belt Company in any manner in reference to this shipment, except to pay its agent at Clarendon the through freight from Burnham, and they did this at the direction of defendant's agent. If any receipt or bill of lading was issued by the Cotton Belt Company, it was not to plaintiffs. The plaintiffs' dealings and contract with reference to the shipment in question were all with defendant's agents at Burnham and Jonesboro.

We quote what plaintiff Quinn says took place at Jonesboro:

"I looked after the forwarding of the apples to Clarendon. No freight had been paid on them, and I applied to the agent of the Frisco at Jonesboro to arrange for shipping them on to Clarendon. We had the rate that the agent at " Burnham had given us to Jonesboro. Q. State what kind of freight charges he demanded in comparison with the rate you had been given. A. It was just about twice what the agent at Burnham told us it would be. I didn't have enough money with me to pay what he demanded. I meant to pay it and collect it back, so I had to go down to Truman to get the money. When I got back it was raised again. I offered to pay it at one time, and did pay it, and he gave it back to me, and said he would send it on `collect,' and I could get the agent there to fix it if it was an excessive rate. I was there from the 8th to the 10th of October and it was the last minute he agreed to send it on to Clarendon for the freight to be collected there. The agent finally marked across the bill, `Forwarded to Clarendon.' The car bad been there about two days before I could get him to send it on. I asked the agent to turn the car over to me or to the Cotton Belt. I wanted to pay the rate we had agreed on—the rate the agent gave us—but he had nearly doubled that. When we got to Clarendon we paid the freight clear through from Burnham to that place and it was 31 cents a hundred, the same rate that had been given us at Burnham."

The apples were shipped in a car provided with ventilators which plaintiffs say were open when the car left Burnham and, were there sealed so as to remain open. The car was on the road four or five days, and when it arrived at Clarendon the ventilators were closed, and, on opening the car, the apples were found to be damaged and decaying, caused by want of ventilation. Whether the ventilators were open or closed while the car was at Jonesboro is not shown. The case comes here on a sustained demurrer to plaintiffs' evidence as to defendant's liability, and no question is made but that plaintiffs sustained damages by reason of the negligence of the carrier in closing and not keeping open the ventilators during the shipment.

It is important to keep in mind that the action is based on negligence of the carrier in not properly handling and caring for this property while in its hands. Is defendant responsible for that negligence? The plaintiffs contend that defendant is responsible whether the damage occurred before the apples reached Jonesboro or while the car was delayed at that point, or while being transported from Jonesboro to Clarendon. Defendant denies that it is liable for any damage after the car left Jonesboro, it being then on the tracks of the Cotton Belt road, and that in order to recover plaintiffs must show that the damage occurred before the car left Jonesboro. Defendant disclaims liability for any negligence of the connecting carrier.

Preliminary to this inquiry, we will grant that, as plaintiffs sue for specific negligence in not keeping open the ventilators of the car, they must recover on such specific negligence. Smith v. Railroad, 177 Mo. App. 269, 164 S. W. 132; Hurst v. Railroad, 117 Mo. App. 25, 37, 94 S. W. 794; Yontz v. Railroad, 174 Mo. App. 482, 160 S. W. 832. We will also grant that, where goods are delivered in good condition to the initial carrier, and are found to be damaged, due to negligence, when delivered by the terminal carrier, and it is not shown which carrier was guilty of negligence, the presumption is that it is the negligence of the last carrier. Hurst v. Railroad, supra, 117 Mo. App. log. cit. 38, 94 S. W. 794; Bockserman v. Railroad, 169 Mo. App. 168, 152 S. W. 389.

Defendant insists that the whole question here depends on whether the defendant through its agent at Burnham made a valid contract for through shipment to Clarendon. As this constitutes an interstate shipment, it is also insisted that the federal Interstate Commerce Act governs the same, and that the decisions of the federal courts interpreting this act are binding on this and other state courts. We will so grant. It must be kept in mind, however, that this case does not involve freight rates, nor a contract giving one shipper a preference over another, or a claim by plaintiffs arising under a special contract giving them any special privileges. The question of a contract...