Kemper Mill & Elevator Co. v. Hines
| Decision Date | 14 March 1922 |
| Docket Number | No. 22469.,22469. |
| Parties | KEMPER MILL & ELEVATOR CO. v. HINES, Director General. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.
Action by the Kemper Mill & Elevator Company against Walker D. Eines, Director General in charge of railroads. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
William C. Lucas, of Kansas City, W. F. Evans, of St. Louis, E. H. Grady, of Chicago, Ill., and John H. Lucas, of Kansas City, for appellant.
Hagerman & Jost, Frank Hagerman, and Henry L. Jost, all of Kansas City, for respondent.
I. Suit for conversion of two cars of corn meal shipped by plaintiff over the St. Louis & San Francisco Railroad and connecting carriers to East Joliet, Ill., one car being shipped from Republic, Mo., and the other from Aurora, Mo. The bills of lading were issued to plaintiff by said railroad company while in charge of the Director General of Railroads, and were dated, respectively, April 12, 1918, and April 16, 1918. They were shipper's order bills, "notify Jonas F. Eby & Son." Plaintiff drew two sight drafts on Eby & Son at Lancaster, Pa., and, attaching one of the bills of lading to each draft, forwarded same for collection through its bank at Kansas City, with instructions to deliver the bills of lading to Eby & Son upon payment of the drafts. The drafts, being dishonored by Eby & Son, were with the bills of lading returned to the plaintiff. The bills of lading were never in the possession or ownership of Eby & Son. In the meantime both of the cars had been reconsigned by the terminal carrier at Joliet at the request of Eby & Son, one to Philadelphia, Pa., and one to Lowell, Mass. The terminal company required Eby & Son to give it an indemnifying bond in accordance with its custom in such cases. No new bills of lading were issued, but the railroad billing was simply changed by the terminal company by inserting therein the new destination of the cars.
On arrival at Philadelphia and Lowell the meal was found to be spoiled and unmerchantable and was rejected by Eby & Son.
Plaintiff's evidence tended to show that on July 3, 1918, when it ascertained the consignments had been so reshipped and rejected, it demanded payment for the meal from the defendant, claiming that the terminal carrier at Joliet had no authority to deliver the meal or reconsign it at the request of Eby & Son, they not being the owners nor having the bills of lading nor any authority from the plaintiff for so receiving or reconsigning the meal, and that the meal was therefore converted by said terminal carrier, and defendant, as the initial carrier, was liable for its value to the plaintiff. Each bill of lading was in the standard interstate commission form and provided that the meal was "consigned and destined as indicated below, which said carrier agrees to carry to its usual place of delivery at said destination, if on its road; otherwise to deliver to another carrier on the route to said destination." Each bill of lading also contained the following provision:
Each bill also contained the following:
"Consigned to order of Kemper Mill & Elevator Company, Destination, E. Joliet, Ill., Notify Jonas F. Eby & Son, at E. Joliet, Ill., Route, via C. P. St. L. and via B. J. B."
The defense pleaded in the answer was that plaintiff, at the time of the billing of said corn meal, had a contract with Jonas F. Eby & Son for the sale of a large quantity of meal and billed the same to East Joliet, Ill., to its own order, with directions to notify Jonas F. Eby & Son; that defendant notified Jonas F. Eby & Son as directed, and said Eby & Son refused to accept the same at East Joliet, Ill.; that thereafter plaintiff authorized and directed said Eby & Son to have one car forwarded to Philadelphia, Pa., and another to Lowell, Mass., and same was so forwarded, and on its arrival it was inspected and rejected as unmerchantable, and plaintiff notified thereof. "And defendant denies and says that it is not true that he converted the same."
The reply traversed the new matter In the answer.
At the trial plaintiff's evidence tended to support the allegations of the petition and that it had never authorized or directed Eby & Son or any one to have said cars forwarded to Philadelphia or Lowell, or their original destination changed.
Defendant, on its part, offered testimony tending to prove: First, that after the bills of lading were issued, the plaintiff orally authorized the said Eby & Son to instruct the carrier to reconsign or divert the shipments, respectively, from Joliet, Ill., to Lowell, Mass., and Philadelphia, Pa., as was done; second, that the two cars in question were part of an order of 10,000 sacks of corn meal ordered by Eby & Son from plaintiff, originally required to be shipped to Joliet, Ill., but subsequently changed, by oral agreement of parties before any shipment was made, so as to authorize Eby & Son to order the carrier to reconsign or divert all of said shipments, consisting of 12 or 15 cars, from Joliet, Ill., to various Eastern points, and there to be disposed of by plaintiff or by Eby & Son, as agents for the account of plaintiff, and that all of the other cars were so diverted under such changed agreement and disposed of by plaintiff or for plaintiff by said Eby & Son prior to July 3, 1918, when plaintiff first notified defendant that it had not authorized the cars in suit to be diverted or forwarded to Philadelphia or Lowell, and that plaintiff would hold the defendant liable as for a conversion of the same; third, that it was the custom for all shipments made to Joliet, Ill., which was not a market for corn meal, but a convenient railroad center from which to reach other points or markets under bills of lading to shipper's order, notifying certain parties, for the shipments to be diverted to other points by the carrier at the request of the notify parties, without surrendering or having the bills of lading in their possession or having any special authority from the shippers authorizing such reconsignment or diversion.
On objection of plaintiff, all of above testimony offered by defendant was excluded by the court.
The bills of lading provided that:
"The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including freight charges, if paid."
Both parties tried the case on the theory that the measure of damages was the value of the meal at the time and place of conversion, and defendant assigns error as to certain testimony admitted for plaintiff as to the value of the meal, but which we need not notice in the view we take of the time and place of determining such value.
Defendant also complains of the court's refusal of its demurrer to plaintiff's evidence and of certain instructions asked by it and giving of certain instructions for the plaintiff, but the decision of this court on the action of the lower court in excluding the evidence aforesaid offered by defendant, and on other points herein, will also determine the propriety of such instructions, and they need not be specifically set out or further referred to.
The verdict was for the plaintiff for $9,091, or $433.50 more than was claimed in the ad damnum clause in the petition.
The court overruling defendant's motion for new trial, it duly appealed to this court.
II. The shipments in question being interstate shipments, it is not denied that the defendant, as the initial carrier, was liable for the acts of the terminal carrier at East Joliet under the Federal Uniform Bills of Lading Act. Railroad v. Blish Milling Company, 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 848.
III. We think, too that the act of said terminal carrier, at the request of Eby & Son, in reconsigning the corn meal from Joliet to Eastern points by changing the way bills, although it did not issue any new bills of lading, was a delivery of the meal to Eby & Son (Pere Marquette Railroad Co. v. French & Co., 254 U. S. 538, 41 Sup. Ct., 195, 65 L. Ed. 391), and, unless such delivery was authorized by plaintiff, the defendant is liable as for a conversion of said meal without any subsequent demand therefor. But, if such delivery was authorized by plaintiff, the defendant is not liable herein. Railroad v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Marshall & Co. v. Railroad, 176 Mo. 480, 75 S. W. 638, 98 Am. St. Rep. 508; Pere Marquette Railroad Co. v. French & Co., 254 U. S. 538, 41 Sup. Ct. 195, 65 L. Ed. 391.
In the case last cited the person to whom the goods were delivered had procured the bill of lading illegally and did not surrender it to the carrier, but he had it, duly indorsed, in his possession, and it was upon the ground that he had it in his possession that the court justified the carrier in delivering the goods to him.
But in disposing of the case the court announced the law as follows (254 U. S. 546, 41 Sup. Ct. 198, 65 L. Ed. 391):
To continue reading
Request your trial