Kemper Mill Co. v. Missouri Pac. Ry. Co.
| Decision Date | 01 May 1916 |
| Docket Number | No. 11895.,11895. |
| Citation | 186 S.W. 8,193 Mo. App. 466 |
| Parties | KEMPER MILL CO. v. MISSOURI PAC. RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.
Action by the Kemper Mill Company against the Missouri Pacific Railway Company. Transferred from the Supreme Court, 178 S. W. 502. Judgment for plaintiff, and defendant appeals. Reversed.
E. J. White, of St. Louis, and Thomas Hackney, of Kansas City, for appellant. Cowherd, Ingraham, Durham & Morse, of Kansas City, for respondent.
Plaintiff's action is to recover damages for failure to deliver bran shipped over defendant's road from Wichita, Kan., at Atmar, Tex. Judgment was rendered against defendant.
It appears that an institution known as the Kansas Milling Company shipped, in two shipments over defendant's road and its connecting carriers, two carloads of bran from Wichita, Kan., to Atmar, Tex., consigned to itself. The Kansas Milling Company sold and indorsed the bills of lading for these shipments to plaintiff. They provided that plaintiff was to be notified of arrival at destination. The bran arrived at Atmar, but instead of being delivered to plaintiff, the last carrier delivered to the Trinity County Lumber Company without surrender of the bills of lading held by plaintiff. In making this delivery that carrier, for its protection, took an indemnifying bond from the lumber company.
The shipment falls under the interstate commerce law of Congress, known as the "Carmack Amendment to the Hepburn Act," whereby the initial carrier is made liable to the legal holder of the bill of lading for loss of property. Adams Express Co. v. Croninger, 226 U. S. 491, 504, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Kansas Southern v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Atl. Coast Line R. R. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7. The particular statute is as follows:
"That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed." 34 Stat. L. 593.
There is no good reason for the assertion that such statute only covers a loss or injury in transit, as distinguished from a misdelivery. The terms of the statute are not thus limited.
The last carrier delivered to the lumber company at the request of a company known as the Reader Grain Company. But it was not shown that such company had authority from plaintiff to make such request. Nor was the attempt successful which defendant made to show that the Reader Grain Company had been held out by plaintiff as its agent. It seems that this grain company had bought grain from plaintiffs and deliveries had been allowed without payment. But those shipments were not accompanied by bills of lading. They did not, as did these, require delivery on the shipper's order and delivery of the bill of lading. There was some evidence of the Reader Company occupying, in certain instances, a limited agency for plaintiffs. But it clearly appeared to be wholly disconnected from the transaction in controversy.
But it is said that plaintiff ratified Reader's agency after knowledge of the wrongful delivery. We think the court properly found against that part of the defense. The fact that plaintiff made effort to collect from the Reader Company for its wrongful act in ordering a misdelivery does not absolve defendant from its obligation. If one orders another to commit a wrong against a third party, each is liable, and an unsuccessful effort to hold one will not relieve the other.
Defendant claims exemption from liability by reason of a failure on plaintiff's part to notify it within four months, as required by the...
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