Kissell v. Pittsburgh, Ft. W. & C. Ry. Co.

• Decision Date: 03 July 1916
• Docket Number: No. 12075.,12075.
• Citation: 194 Mo. A. 346,188 S.W. 1118
• Court: Missouri Court of Appeals
• Parties: KISSELL v. PITTSBURGH, FT. W. & C. RY. CO. et al.

188 S.W. 1118

194 Mo. A. 346

KISSELL v. PITTSBURGH, FT. W. & C. RY. CO. et al.

No. 12075.

Kansas City Court of Appeals. Missouri.

July 3, 1916.

Rehearing Denied October 2, 1916.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

"To be officially reported."

Action by Carson L. Kissell against the Pittsburgh, Ft. Wayne & Chicago Railroad Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Harkless & Histed, of Kansas City, for appellants. Hal R. Lebrecht, A. J. Bolinger, and D. E. Black, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, who lived at Napoleon, Ohio, and was engaged in dressing and shipping poultry to New York and other eastern points, brought this suit for damages arising out of the failure of the defendant railway companies to furnish a refrigerator car at Napoleon for a shipment of dressed poultry. The cause of action is based upon a contract alleged to have been made by defendants with plaintiff that if plaintiff would route his dressed poultry over defendants' lines to the east, they would furnish at Napoleon a refrigerator car on each and every Saturday thereafter, provided three days' notice were given through a Mr. Mullin that such a car would be used on that day. Plaintiff alleges that he gave the required three days' notice that he would use a car on Saturday, October 22, 1910, and requested said car for that date and purpose; that, relying on said contract, he killed and packed a large amount of poultry, and had it ready for shipment on that day; that defendants failed to furnish said car on said date, and did not provide said car until October 24th, two days later; that plaintiff did not have facilities for keeping dressed poultry, which fact was well known to defendant; and that during the time the shipment was waiting for a car the poultry spoiled, damaging plaintiff in the amount sued for. The answer was a general denial. The case was tried before the court without a jury, and judgment was rendered for the plaintiff. Defendants appealed.

Napoleon, plaintiff's place of residence and shipping point, is on the Detroit, Toledo & Ironton Railroad, and not on the defendants' system of lines. The nearest point connecting with the defendant lines is Lima, Ohio, over 50 miles from Napoleon. So that, in order for freight to get to the defendant lines, it must first go over the Detroit, Toledo & Ironton Railroad to Lima. There it could be turned over to the defendants for carriage on to New York and other eastern points. The Detroit, Toledo & Ironton Railroad, the only road in Napoleon, was a short line, and had but few cars. Plaintiff had encountered much difficulty in getting a car when he wanted it. Dressed poultry is a perishable product; and, of course, for one in plaintiff's situation, it was necessary that a properly iced refrigerator car be at Napoleon at the proper time. The defendants constantly kept on hand at Lima a number of cars adapted to this business. The arrangement plaintiff relies upon as a contract was made between plaintiff and one H. M. Quicksell, defendants' traveling fast-freight solicitor. This arrangement was made at plaintiff's place of business in Napoleon after said traveling freight agent had learned of plaintiff's situation and of the difficulty he had experienced in getting a car when it was wanted. Under the arrangement plaintiff was to notify Mullin, the Detroit, Toledo & Ironton station agent at Napoleon, that he would need a car and when he wanted it. The agent at Napoleon would notify defendants' station agent at Lima, and upon receipt of this notice, defendants would furnish a car properly prepared and iced for the shipment. The arrangement was entered into some time in August, 1910. Thereafter, and up until the 22d day of October, 1910, plaintiff regularly obtained a car at Napoleon every Saturday in this way, and routed it over defendants' lines as he agreed to do. The facts in reference to the car wanted on October 22, 1910, are as follows: On Tuesday, October 18, 1910, plaintiff, following the usual program under the arrangement, notified Mullin, the Detroit, Toledo & Ironton Agent at Napoleon, that he would want a car on the 22d. Mullin telephoned the order to defendant's agent at Lima. According to defendants' evidence, this order was received at Lima some time in the afternoon of Friday, October 21st. The defendants iced a refrigerator car, and delivered it to the Detroit, Toledo & Ironton Railroad at 11 p. m. of the same day. Under ordinary conditions the car, turned over at that hour to the Detroit, Toledo & Ironton at Lima, should have been delivered at Napoleon by noon of October 22d, but was not started out of Lima by the Detroit, Toledo & Ironton Railroad until 7:30 a. m. Sunday October 23d. According to all the evidence it did not arrive in Napoleon until Monday the 24th, and during this delay from the 22d to the 24th the poultry deteriorated. It will thus be seen that there is no evidence that the defendants failed to ice and furnish a car at Lima in time for the Detroit, Toledo & Ironton Railroad to get the car to Napoleon when needed. All that plaintiff's evidence shows is that the car did not reach Napoleon until the 24th, and defendants' evidence is that this was the fault of the Detroit, Toledo & Ironton Road.

The defendants' contention, therefore, is that they are not liable, for the reason that the arrangement their traveling fast-freight solicitor made with plaintiff was not a contract whereby defendants would deliver cars at Napoleon, but only that they would turn them over to the Detroit, Toledo & Ironton Railroad at Lima for plaintiff to use whenever they reached Napoleon. Defendants also contend that, even if the arrangement be construed as a contract to deliver cars at Napoleon, still, as this is a point not on the defendants' lines, their traveling fast-freight soliciting agent had no authority to bind the defendants to such a contract.

Taking up the first contention, namely, that the contract was not for a delivery at Napoleon, we think this was a question for the trial court, sitting as a jury, to determine. The contract asserted by plaintiff is that the defendants agreed that, if he would route his shipments over their lines, they would furnish him cars when notified three days in advance; that notice to be given to the agent at Napoleon. Plaintiff performed his part of the agreement by routing his cars over their lines and by giving the proper notice that he wanted the car in question. There was thus a mutuality to the contract and a sufficient consideration to support the undertaking. Baxley v. Tallassee R. Co., 128 Ala. 183, loc. cit. 189, 190, 29 South. 451; Gulf, etc., R. Co. v. Combes (Tex. Civ. App.) 80 S. W. 1045. The mutual and reciprocal promises of the parties were not only a sufficient consideration therefor, but they were evidence tending to prove a contract to furnish the cars at Napoleon. Baker v. Kansas City, etc., R. Co., 91 Mo. 152, 3 S. W. 486; Clark v. Ulster & D. R. Co., 189 N. Y. 93, 81 N. E. 766, 13 L. R. A. (N. S.) 164, 121 Am. St. Rep. 848, 12 Ann. Cas. 883. That there was mutuality in and a consideration for the contract, and that Napoleon was the place where the cars were to be furnished, can be seen from plaintiff's evidence as to what the contract was. It should be said here that his evidence was corroborated by other disinterested witnesses, and that defendant offered no evidence to contradict it. That evidence was, in part, as follows:

"Some time in 1910, beginning the poultry season, there was some delay in cars; I asked him what arrangement I might make to overcome this difficulty in the delay of cars; he said: `Arrange a standing order, make shipments and load out and have a standing order that you will load out each and every Saturday long as you have car-lot business up until the time you see you haven't car-lot business enough coming, and we will take care of you with a pickup car.' At this particular time we was using full car and pickup car also."

Again, when asked to state fully and particularly all that was said and done at the time the arrangement was entered into between the plaintiff and Quicksell representing the defendants, plaintiff testified:

"Along in August, 1910, he called at my office. I had been having trouble getting refrigerator cars at any particular time I wished them. Mr. Quicksell, who first visited my place of business soliciting business for the Pittsburgh, Ft. Wayne & Chicago Railroad Company and the Pennsylvania Railway Company, and I talked this matter over in detail. I told him that after the poultry was packed ready for shipment that I had no accommodation for refrigeration for these poultry to keep them from spoiling. Mr. Quicksell, after talking the matter over as to whether I could use a car each and every week, said if I would agree to use a car each and every week routed over their lines to New York or other Eastern points, that they would agree, and did agree, to furnish a car each and every week. He said, further, that this would make the day and the time certain; that there would be no misunderstanding or excuses for not furnishing a car each and every Saturday. I then agreed — Q. What did you tell him? A. I agreed — Q. Just say what you told him, not what you agreed, what you told him. A. I told him I would use his cars and route them over the Pennsylvania line to New York City or other Eastern points. Q. What did you tell him about the acceptance of that proposition? Go ahead and tell what you told Mr. Quicksell about accepting his proposition? A. I agreed — Q. Just what you told him; not what you agreed, what you told him. A. I told him I would use his cars as he requested, and route them as he requested over the Pittsburgh, Ft. Wayne & Chicago Railroad Company into New York City and other eastern points. Q. On those conditions? A. On those conditions. Q. That they have a car...