Kemper Mill & Elevator Co. v. Hines

• Decision Date: 14 March 1922
• Citation: Kemper Mill & Elevator Co. v. Hines, 293 Mo. 88, 239 S.W. 803 (Mo. 1922)
• Parties: KEMPER MILL & ELEVATOR CO. v. WALKER D. HINES, Director General of Railroads, Appellant
• Court: Missouri Supreme Court

239 S.W. 803

293 Mo. 88

KEMPER MILL & ELEVATOR CO. v. WALKER D. HINES, Director General of Railroads, Appellant

Supreme Court of Missouri, First Division

March 14, 1922

Appeal from Jackson Circuit Court. -- Hon. Thos. B. Buckner, Judge.

Reversed and remanded.

William E. Lucas, W. F. Evans, E. H. Grady and John H. Lucas for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action for conversion, and the evidence wholly fails to sustain a verdict therefor. The appellant's request for an instructed verdict should have been given and the court erred in the refusal thereof, to which refusal appellant excepted at the time. (a) The petition does not allege a demand and refusal to deliver the shipment, nor does the evidence show that any was made, without which, there can be no conversion. Nanson v. Jacob, 93 Mo. 340; 1 Bouvier's Law Dictionary (3 Rev.) p. 983; Lovelass v Fowler, 79 Ga. 134; Polk v. Allen, 19 Mo. 467; 3 Bouvier's Law Dictionary (3 Rev.) 3327; 4 R. C. L. 290. (b) There was no tortious taking, without which there can be no conversion. 38 Cyc. 2028; Solberg v. Railroad, 228 Pa. 641; Ry. Co. v. Land & Inv. Co., 247 F. 268; Ry. Co. v. French & Co., 41 S.C. 215. (c) There was no use or appropriation indicating a claim of right against respondent. Nanson v. Jacob, 93 Mo. 337; Santa Fe Ry Co. v. Land & Inv. Co., 247 F. 268; 4 R. C. L 290; 38 Cyc. 2028; Solberg v. Railroad, 228 Pa. 641; Schopp Trust Co. v. Mo. Pac. Ry. 115 Mo.App. 338; Sloane v. Caroline Railroad Co., 126 N.C. 487; Mill Co. v. Stocum & Southwestern Ry. Co., 228 S.W. 849; Parker Bell Lumber Co. v. Northern Ry. Co., 69 Wash. 124, L. R. A. (N. S.) 1065. (2) Error in admission of incompetent and immaterial evidence, offered by respondent, and refused to admit competent and material evidence offered by appellant. (a) The bills of lading were issued in the name of and by the St. Louis & San Francisco Railway Company, and as against appellant, were inadmissible, under respondent's theory that being in writing they could not be varied by parol. (b) Introduction of parol evidence, checks, drafts covering price paid by respondent for meal at Republic and Aurora, Missouri; of letters, exhibits and parol evidence of respondent, all of which were self-serving and without tendency to prove conversion by appellant, which were misleading, tending to withdraw the attention of the trier of the facts from the issue of conversion and loss, if any, ensuing therefrom. Dillon v. Hunt, 105 Mo. 162; 8 R. C. L. 489, par. 49. (c) The evidence of Nellis, as to value of property at East Joliet, when there was neither conversion nor markets at East Joliet, and which was altogether speculative and conjectural. (3) The court erred in the rejection of competent and material evidence offered by appellant. (a) Appellant's contention was that by the use of the words "notify Jonas F. Eby & Son" it was intended that notify party could direct shipments to place of sale. This contention, the court rejected, striking out plea, rejecting evidence, and giving instruction. (b) Evidence of custom was admissible. 27 R. C. L. 183; Levi & Co. v. Railroad, 157 Mo.App. 545; Bradford v. Hines, 227 S.W. 891; Bank of Commerce v. Elevator Co., 268 Mo. 541; Klein v. Klein, 281 Mo. 323; Lowell v. Newman, 192 F. 756; The Carlos F. Roses, 177 U.S. 665; Santa Fe Railroad Co. v. Harold, 241 U.S. 371; Pere Marquette Railroad Co. v. French & Co., 41 S.Ct. 215. (c) Proof of express authority given subsequent to issuance of bills of lading did not vary written contract. Pecos Valley Bank v. Evans-Snider-Buel Co., 107 F. 659; Rowland v. Biesecker, 185 F. 517, Stark Electric Co. v. McGinty Co., 238 F. 658; Bradford v. Bank Co., 13 How. 57. (d) The court erred in refusing to admit evidence of the condition of the meal at Philadelphia and Lowell and the value and the rejection thereof. Lane v. Mo. Pac., 132 Mo. 23; Streeper v. Abeln, 59 Mo.App. 488; Eddy v. Baldwin, 32 Mo. 369; Green v. Gallagher, 35 Mo. 226. "Even in criminal cases the rule is, evidence of other crimes connected with one charged, may be shown." State v. Tabor, 95 Mo. 585; State v. Harold, 58 Mo. 496; State v. Rider, 95 Mo. 474. (4) The court erred in giving instructions 1 and 2 for the respondent. They both enlarge and restrict the issue tendered by the pleadings. (a) Enlarge the issues, in that they do not limit the recovery to the amount fixed by the petition. (b) Declare undisputed what is denied both in pleading and proof "that defendant issued and delivered bill of lading." (c) Ignore the issues of use and custom and of express authority and limit the right of delivery to surrender of bill of lading properly indorsed. (d) Ignore necessity of demand and refusal and predicate right to deliver solely on production and endorsement of bills of lading. (e) Limit conditions of meal to East Joliet without evidence as to condition and value at that point. Orris v. Ry. Co., 279 Mo. 15; Schumacker v. Breweries Co., 247 Mo. 160; Black v. Rys. Co., 217 Mo. 685; State ex rel. v. Morrison, 244 Mo. 211; Crow v. Railroad, 212 Mo. 610; Drake v. Hospital Assn., 266 Mo. 11; Walker v. Lewis, 140 Mo.App. 33; Summers v. Baker, 158 Mo.App. 672; Huff v. Railroad, 222 Mo. 303; Radtke v. Basket & Box Co., 229 Mo. 18; McGrath v. Const. Co., 165 Mo.App. 195.

Hagerman & Jost for respondent.

(1) The bills of lading are contracts, and are the sole measure of the rights of the plaintiff and the obligations of the defendant. 4 Fed. Stat. Ann. p. 506; 8 U. S. Comp. Stat 1916, p. 9289, sec. 8604-a; Underwood v. Hines, 222 S.W. 1037; King v. Barbarin, 249 F. 305; Georgia Ry. Co. v. Blish Milling Co., 241 U.S. 190, 60 L.Ed. 951; McGinn v. Ry. & Nav. Co., 265 F. 84; Brockman Comm. Co. v. Mo. Pac. Ry. 195 Mo.App. 615; Aradalou v. Railroad, 114 N. E. (Mass.) 299; Lewis Poultry Co. v. Railroad, 105 A. 112; Strahs v. N. Y. Cent., 184 N.Y.S. 365; Cincinnati Ry. Co. v. Luke, 186 S.W. 875; M. K. & T. Railroad Co. v. Ward, 244 U.S. 383, 61 L.Ed. (U.S.) 1215. (2) The bills of lading, in so far as they pertain to ownership, transportation, destination and delivery being contractual, may not be controlled, altered or modified: (a) By parol evidence. Thee v. Wabash Railroad, 217 S.W. 567; 4 Am. & Eng. Ency. Law (2 Ed.) 540; 4 R. C. L. sec. 23, p. 21; 10 C. J. 209, 210; Vittuci Co. v. Canadian Pac. Ry., 238 F. 1005; Bark Delaware v. Oregon Iron Co., 14 Wall. (U.S.) 579, 20 L.Ed. 783; 2 Ency. Ev. 873; Inman & Co. v. Seaboard Airline Ry., 159 F. 965; Vanderbilt v. Ocean S. S. Co., 215 F. 888; 1 Hutchinson on Carriers (Matthews and Dickinson Ed., 1906) sec. 167, p. 178; 1 Michie on Carriers, p. 332, sec. 469. (b) Nor by any evidence of any alleged practice or custom inconsistent therewith. Coal & Dock Co. v. Transit Co., 220 F. 35; The Rebecca Douglass, 248 F. 367; Hirsch v. Georgia Iron & Coal Co., 169 F. 580; The Mary Bradshaw, 155 F. 696; 2 Ency. of Ev. 875; 4 Am. & Eng. Ency. Law (2 Ed.) 1545; Kimball v. Brawner, 47 Mo. 400; 4 R. C. L. sec. 27, p. 25; Nat. Bank v. Mo. Pac. Ry., 132 Mo. 500; 1 Michie on Carriers, p. 560, sec. 865. (c) Nor by evidence of any alleged oral agreement or understanding claimed by Eby & Son, the notify party, to have been had with plaintiff, under which said notify party asserted authority and control over the shipments, and whose orders are now invoked as a defense to defendant's removal and disposition of the meal in a manner and to a place different from the positive terms of the bills of lading. Sec. 8604-g, p. 9314, 8 U. S. Comp. Stat. 1916; Pioneer Trust Co. v. Mo. Pac. Ry., 224 S.W. 106; Pettigrew v. Lynch, 204 S.W. 741; P. & M. Coal Co. v. Harris Coal Co., 193 Mo.App. 664; Belknap v. Railroad, 91 S. E. (W. Va.) 658; Southern Express Co. v. Smith, 122 N.E. 427; Harwood-Barley Mfg. Co. v. Illinois Cent., 74 So. 573; Voghel v. Railroad, 103 N. E. (Mass.) 287. (d) Since the contract was required to be in writing by the statute, its terms and provisions could not be varied or modified by any subsequent oral agreement. Sec. 8604-g, 8 U. S. Comp. Stat. 1916; Walker v. Overland Co., 191 S.W. 1062; Georgia F. & A. Ry. Co. v. Blish Milling Co., 60 Law Ed. (U.S.) 952. (3) Eby & Son as notify party in the bills of lading had no interest or authority over the shipments, and the defendant was not justified in dealing with them as the alleged agent of the plaintiff. Fed. Stat. Ann. 1918 Supp. p. 74, sec. 6; 8 U. S. Comp. Stat. 1916, p. 9312, secs. 8604-d, 8604-e; Brockman Comm. Co. v. Mo. Pac. Ry. Co., 195 Mo.App. 613; 4 R. C. L. p. 842, sec. 294; Bennett v. Dickinson, 186 P. 1005, 190 P. 757 (Kans.) ; Barton v. L. & N. Railroad, 196 S.W. 380; Hall v. Norfolk-So. Railroad, 91 S. E. (N. C.) 607; 10 C. J. 259; 2 Hutchinson on Carriers (3 Ed., Mathews and Dickinson) p. 819, sec. 736; 1 Michie on Carriers, p. 560, sec. 865. (4) The reconsignment at East Joliet Illinois by Eby & Son, the notify party in the bill of lading, was void and not binding as against the plaintiff, the holder of the bills of lading, and was in legal effect a delivery of the meal to said notify party by the defendant, in violation of his contract with the plaintiff. M. K. & T. v. Ward, 61 L.Ed. (U.S.) 1213; McGinn v. Ore-Washington R. & Nav. Co., 265 F. 84; Pere Marquette Ry. Co. v. French, 41 S.Ct. 195; Bank v. Railroad, 158 Mo.App. 532; Pioneer Trust Co. v. Mo. Pac. Ry., 224 S.W. 106; Perkett v. Railroad, 141 N.W. 612. (5) The E. & J. Railroad as terminal carrier under these bills of lading in removing and transporting the meal from the destination named in the bills of lading to other and different places, on the orders of Eby & Son, the notify party, who did not have and who never had the bills of lading, and in taking from said notify party an indemnity bond and entering into a new contract...