Kemper Mill & Elevator Co. v. Missouri Pac. Ry. Co.

• Decision Date: 06 July 1915
• Docket Number: No. 17025.,17025.
• Citation: 178 S.W. 502
• Court: Missouri Supreme Court
• Parties: KEMPER MILL & ELEVATOR CO. v. MISSOURI PAC. RY. CO.

178 S.W. 502

KEMPER MILL & ELEVATOR CO. v. MISSOURI PAC. RY. CO.

No. 17025.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by the Kemper Mill & Elevator Company against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Transferred to Court of Appeals.

This is an action to recover from the defendant, as the initial carrier, for the loss of two car loads of bran shipped from Wichita, Kan., in October, 1909, over the defendant's railroad and connecting lines to Atmer, Tex. Trial was had in the circuit court of Jackson county, Mo., before the court, without a jury, resulting in a judgment, for the amount claimed, in favor of the plaintiff. Defendant was granted an appeal to this court. The claim is not based upon damage or destruction of the bran while in transit, but because of an alleged wrongful delivery at the point of destination. Plaintiff's petition is in two counts. The two counts are alike except that they are for different shipments. The substantial allegations of the petition are as follows: That in October, 1909, the Kansas Milling Company delivered to defendant at Wichita, Kan, for shipment to Atmer, Tex., the bran in question, each car load being valued at $532; that the defendant received said bran as a common carrier, and for a stated compensation agreed to transport the bran, by means of its own line and that of its connecting carriers, from Wichita, Kan., to Atmer, Tex., and at the latter point to deliver said bran to said Kansas Milling Company or to its order, and thereupon issued a bill of lading for said bran to said Kansas Milling Company; that thereafter plaintiff, for a valuable consideration, purchased from said Kansas Milling Company all of said bran while it was in transit, and thereupon the Kansas Milling Company duly indorsed said bill of lading to the plaintiff, and that plaintiff thereupon became the owner of said bran and subrogated to all tie rights and privileges which the said Kansas Milling Company had concerning the same; that the defendant and its connecting carriers failed and neglected to perform their duties as common carriers in respect to said bran, and instead of delivering it in accordance with the terms of said bill of lading did, on the _____ day of November, 1909, wrongfully convert said bran to their own use, by reason whereof the same was wholly lost to plaintiff and the plaintiff was damaged in the sum of $532 for each car. The substantial al egations of the defendant's answer are as follows: A general denial was first pleaded. Defendant admitted that it received the bran for shipment, but denied that it agreed to deliver the same at Atmer. Tex.; that it only agreed to transport the same to the end of its own line, and there to deliver to a connecting carrier, which connecting carrier was in turn to deliver said bran, at the point of destination, to the consignee; that the bill of lading under which the shipment was made contained the following provision:

"Sec. 2. In issuing this bill of lading, this company agrees to transport only over its own line, and except as otherwise provided by law, acts only as agent, with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage or irjury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, excepting as such liability is or may be imposed by law."

Defendant further alleges that it duly delivered said bran to its connecting carrier, and any loss resulting to the plaintif on said shipment occurred through the negligence of the connecting carrier, and that the same was not due to any default or negligence on the part of defendant; that the bran was purchased by the Trinity County Lumber Company from the Reader Grain Company of Houston, Tex., and in pursuance of an understanding with the plaintiff by which the said Reader Grain Company represented the plaintiff as its agent and broker in the sale and disposition of said bran, and that while said bran was shipped with bill of lading attached, the purchase money therefor was paid by said Trinity County Lumber Company to the plaintiff's said agent, and that the plaintiff charged the shipment to said agent and received from said agent a portion of the money paid therefor; and that the plaintiff, by reason of having procured the delivery of said bran, through its agent to the Trinity County Lumber Company, and having received a part of the purchase price therefor, has waived its right to proceed against defendant upon said bill of lading. It is further alleged: That the bill of lading contained the following provision:

"Claims for loss, damage or delay, must be made in writing to the carrier at the point of delivery or at the point of...