Landa v. Holck & Co.
| Decision Date | 02 July 1895 |
| Citation | 31 S.W. 900,129 Mo. 663 |
| Parties | Landa v. Holck & Company et al.; the Missouri, Kansas & Texas Railway Company, Garnishee, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Affirmed.
Jackson & Montgomery and Hugh C. Ward for appellant.
(1) The garnishee, the Missouri, Kansas & Texas Railway Company, is not liable to garnishment on account of articles delivered to it for transportation. Hutchison on Carriers [2 Ed.], secs 402, 403; Waples on Attachment, 601; Bates v Railway, 60 Wis. 289; Railroad v. Cobb, 48 Ill 402; Painter v. Railroad, 15 Neb. 394. (2) The title to the property and the right to receive delivery may be transferred by an assignment of the bill of lading. The carrier can not know where the bill of lading is, and therefore can not know how to answer. (3) If it is the meaning of the Missouri statute on garnishments, that a common carrier is liable to garnishment on account of property delivered to it for transportation from one state to another, then the statute is void as being a regulation of interstate commerce.
I. J. Ringolsky for respondent.
(1) The appellant was subject to garnishment under the express provisions of the statute. R. S. 1889, sec. 543. See, also, Adams v. Scott, 104 Mass. 164. (2) The evidence shows that the car of lard in controversy was garnished in Jackson county and while the car was in the railroad yard at Kansas City. Appellants cases are not applicable. (3) In Bates v. Railroad, 60 Wis., the facts were undisputed and showed that the goods when the garnishment was served were not in the state of Wisconsin where the suit was brought, but were in the state of Illinois. The next case cited, Railroad v. Cobb, 48 Ill. 402, is not in point, because in this case the goods were in transit to such an extent that they were at the time of the service of the garnishment in a different county from the one in which the suit was brought. In Painter v. Railroad, 15 Neb. 394, the question decided was as to the right of stoppage in transit.
The plaintiff resides in Kansas City, Missouri. The defendants Holck & Company live at Eagle Pass, Texas. On the twenty-ninth of September, 1892, plaintiffs commenced an action against defendants to recover $ 600, and sued out an attachment in aid thereof and caused the Missouri, Kansas & Texas Railway Company to be summoned as garnishee about 6 o'clock p. m. of the same day. At the next term of the court interrogatories were duly propounded by plaintiff, and the garnishee, the appellant herein, made its answer:
"That at the time of the service of the summons of garnishment herein it had in its possession a car load of lard which had been delivered to this garnishee by the Armour Packing Company, at Kansas City, Missouri, consigned to C. Holck & Company, at Eagle Pass, Texas, to be transported by this garnishee as a common carrier and by it as such carrier to be delivered to said consignee at said destination of Eagle Pass in the state of Texas, over and by means and way of this garnishee's railroad, and its connecting line, that at the time of the service of summons herein, this garnishee had issued its bill of lading, covering said lard, to said Armour Packing Company, consignor thereof, and the said car load of lard was in the course of transportation between said points by this garnishee as a common carrier, as aforesaid; and this garnishee further answers that it did not at said time and has not any time since had in its possession any other belonging to or consigned to said C. Holck & Company or to Holck and Company, or either of them."
To this answer plaintiff filed a denial admitting that the garnishee had in its possession the car load of lard, when served with the garnishment but denied that said lard was in transit, and averred that it was held by the garnishee in its yards, preparatory to shipment to defendants at Eagle Pass, Texas, and was not accessible to the sheriff of Jackson county, Missouri, and, therefore, could not be taken into his possession under the writ of attachment.
The garnishee replied to this denial and admitted that at the time of the service of the garnishment, it had in its possession a car load of lard consigned to Holck & Company; and, then set up that the lard was accessible to the sheriff of Jackson county, Missouri, before it left Kansas City, Missouri. It then set up that the garnishee did not have possession of the lard until it reached Paola, Kansas, that the Kansas City, Fort Scott & Memphis Railway Company, known as the "Gulf," or "Scott" Road, had possession of the lard at the time of the service of the writ of garnishment upon it. That the Gulf road makes the haul of all of garnishee's goods from Kansas City, Missouri, to Paola, Kansas, and that the Gulf road owns and controls the yards in which this car load of lard was placed by the Armour Packing Company. It also set up that the lard was "in transit" when respondent was garnished.
At a trial of these issues made up by the pleadings, and the motion, to dismiss the garnishee, before the judge, without a jury, there was a finding for the plaintiff, and in rendering a judgment as required by the statutes, the court found that at the time respondent was garnished, it had in its possession a car load of lard, the property of defendants, and the court further stated in the judgment, that it found from the evidence, that the car containing said lard was not in transit, and that said lard was subject to garnishment.
Without material contradiction the evidence disclosed that at 12:15 p. m., September 29, 1892, the Armour Packing Company, at Kansas City, Missouri, turned over on their packing house track a car load of lard, to a switching crew of the Memphis and Fort Scott Railroad and by this crew it was hauled into the yards of the Memphis road at Kansas City; that thereupon Mr. Norton, the agent of the garnishee, at Kansas City, issued its through bill of lading to Armour Packing Company for said car, consigning it to Holck & Company, Eagle Pass, Texas. That by virtue of a traffic agreement between the Gulf and Memphis Railway Company, and the Missouri, Kansas & Texas Railway Company, the Gulf road hauls all goods received by the Missouri, Kansas & Texas Railway Company at Kansas City, for points on the Missouri Kansas & Texas Railway, to Paola, Kansas. That the Missouri, Kansas & Texas issues its through bills of lading from Kansas City to such points. That the Gulf issues no bills of lading for goods it hauls under this agreement from Kansas City to Paola.
Mr. Norton also stated that he was served with the writ of garnishment about 6 o'clock the evening of September 29, 1892, and that the evening trains pull out about 7:15 P.M.; that the cars before they leave are in the Ft. Scott yards in Kansas City, Jackson county, Missouri, about a half mile south of his office. The arrangement of the Scott road with appellant is, that the appellant pays the Scott road so much per car for hauling from Kansas City, Missouri, to Paola, Kansas. The reason the appellant didn't set out the car of lard when it was garnished was because the agent, Norton, didn't look for a car of lard. He, knowing the plaintiffs and defendants were grain men, only looked for grain. Mr. Norton did not know where the car of lard was when appellant was garnished, only that it was brought from Armour's and placed in the yards.
He further states that this particular car of lard left Kansas City at 8 o'clock the night of September 29, 1892; that it was standing in the yards from 6, when the defendant was garnished, to 8 o'clock that evening; that it had not yet started on its trip; that the appellant gives bills of lading from any outside point into Kansas City, Missouri; that the number of car containing the lard in question was 3020 and was a car belonging to appellant; and that he had absolute control of this car of lard, and could have ordered it held back if he wanted to; that it was stopped by him at Dennison, Texas, and bonded by defendants; that appellants issue maps and timetables showing the Missouri, Kansas & Texas Railway Company runs into Kansas City, Missouri.
Mr McVay, a switchman for the Scott road, says: That Armour has a private track running from the packing house to the Scott yards; that he hauled a car of lard in dispute from Armour's at 12:15 on September 29, 1895, and it reached the yards sometime between that time and 6 o'clock; that no record is kept of the track the car is on and no one knew where this car of lard was on September 29, 1895; that it would take an experienced man two hours to go...
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