LeSinsky v. Great Western Dispatch

• Decision Date: 29 March 1881
• Citation: 10 Mo.App. 134
• Parties: MARCUS LESINSKY, Appellant, v. GREAT WESTERN DISPATCH, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 134

MARCUS LESINSKY, Appellant,

v.GREAT WESTERN DISPATCH, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 29, 1881.

1. Where a common carrier accepts goods directed to a point beyond the termination of its line, consigned to the care of a connecting carrier, and the latter refuses to receive the goods, the former does not discharge its duty by storing the goods, but must use reasonable diligence to notify the consignor or consignee of such interruption in the transit.

2. In an action for damages in such a case, it is competent for the owner to show that six days after its refusal to receive the goods the intermediate carrier would have accepted and delivered the goods to the consignee, and that the defendant had notice of this.

3. An acceptance, by the owner, of goods short of their destination, and after they have been damaged in consequence of the carrier's negligence, is not a bar to as action for such damage.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

MYERS & ARNSTEIN, for the appellant: It was the duty of the defendant, either as common carrier or as forwarder, to give notice to the consignor or consignee of the non-delivery of the merchandise to the next carrier, and of the whereabouts of the merchandise. Its failure so to do subjected it to liability for the damages resulting therefrom.-- Louisville R. Co. v. Campbell, 7 Heisk. 261; Conkey v. Railway Co., 31 Wis. 619-637; Williams v. Holland, 22 How. Pr. 137; Crouch v. Railway Co., 2 Hurl. & N. 419; Convoy's Wheat, 3 Wall. 225; The Green v. Marshall, 48 Ind. 596; Salinger v. Simons, 8 Abb. Pr. (N. S.) 409; Rankin v. Railroad Co., 55 Mo. 172. As forwarder, it was incumbent on the defendant to deliver the goods to the next carrier as soon as that carrier was ready to receive the same; and the court erred in not permitting plaintiff to show when said next carrier was so ready to receive said goods, and that the defendant knew delivery could be made.-- Railroad Co. v. Manufacturing Co., 16 Wall. 319; Ingalls v. Brooks, 1 Edm. Sel. Cas. 104; Baltimore R. Co. v. Schumacher, 29 Ind. 168; Hadley v. Clark, 8 Term Rep. 259; Northrup v. Railroad Co., 5 Abb. Pr. 425; Holtzclaw v. Duff, 27 Mo. 392; Coates v. Express Co., 45 Mo. 238; Story on Bail., sect. 444; Steamboat v. Moies, 28 Mo. 246. The mere fact of the refusal of the Iron Mountain Road to receive the goods, cannot exonerate the defendant, as common carrier, from liability for the failure to deliver and forward, if it could have been shown that when the defendant received the goods for shipment, its officers and agents knew the Iron Mountain Road would not receive them; and it was error to exclude evidence tending to show such knowledge on part of the defendant.-- McCarty v. Railroad Co., Mo. App. 1666; Helen v. Wilson, 4 Mo. 41; Davis v. Smith, 15 Mo. 467; Langd. Sel. Cas. on Con., 798, 803, 810; Hand v. Baynes, 4 Whart. 204; Hadley v. Clark, 8 Term Rep. 259; Beebe v. Johnson, 19 Wend. 500; Shubrick v. Salmond, 2 Burr. 1637. The court erred in instructing the jury that they must find for defendant, if they found that the defendant had tendered the goods to the Iron Mountain Road; such tender was ineffectual unless accompanied with proper shipping instructions, and the question whether such shipping instructions had been given was one to be left to the jury.-- Northern R. Co. v. Railroad Co., 6 Allen, 256; Little Miami R. Co. v. Washburn, 22 Ohio St. 324; Hempstead v. Railroad Co., 28 Barb. 485; Redf. on Car., sect. 186; Michigan R. Co. v. Day, 20 Ill. 375. The acceptance of goods from a carrier short of their destination will not absolve a carrier from liability for a breach of contract committed before such delivery.-- Atkinson v. Steamboat, 28 Mo. 124; Bowman v. Teall, 23 Wend. 306.

E. W. PATTISON, for the respondent: The defendant is sued as a common carrier. It tendered the goods as per contract. They were refused. The defendant stored them. This ended its liability as a carrier. Being sued only as a carrier, it cannot be held.--Hutch. on Car., sect. 356; Cramer v. Express Co., 56 Mo. 524; Goold v. Chapin, 10 Barb. 612. See also Sweet v. Barney, 23 N. Y. 335; McDonald v. Railroad Co., 34 N. Y. 497; Williams v. Holland, 22 How. Pr. 137; Robinson v. Batchelder, 4 N. H. 40; Baldwin v. Express Co., 23 Ill. 197; Young v. Smith, 3 Dana, 92; Stone v. Waitt, 31 Me. 409; Hamilton v. Nickerson, 11 Allen, 308; Bartlett v. Steamboat, 32 Mo. 256.THOMPSON, J., delivered the opinion of the court.

This is an action against the defendant, an unincorporated association of railroad companies, operating connecting lines between New York and St. Louis, for damages resulting to the plaintiff by reason of the failure of the defendant to deliver to the next carrier for shipment beyond the defendant's route, merchandise belonging to the plaintiff.

The petition alleges that “the defendant was, at all the times mentioned, a common carrier; that on February 28, 1877, for value received, it agreed to carry from the city of New York to the city of St. Louis one case of merchandise, and at said city of St. Louis to deliver the same to the St. Louis, Iron Mountain, and Southern Railroad Company, and that the ultimate destination of said case was Pine Bluff, Arkansas, of which fact the defendant had full knowledge; that the defendant did transport said case to St. Louis, but that it failed to deliver it to the St. Louis, Iron Mountain, and Southern Railroad Company, as it had agreed to do; and failed to notify the plaintiff of its said failure to deliver said merchandise to said last-named road; and failed to inform the plaintiff of the whereabouts of said merchandise; and the plaintiff claims damages in the sum of $650, by reason of the negligence of the defendant in failing to deliver and to notify,” etc. To this a general denial was filed.

The evidence tends to show that on February 28, 1877, Seidenbach, Schwab & Co. delivered to the defendant at New York City, a case of clothing for spring wear, of the value of $994, belonging to the plaintiff, marked “M. Lesinsky, Pine Bluff, Ark., care of St. L., I. M. R. R.” for which the defendant gave a bill of lading reciting the marks on the goods, and stating that they were to be forwarded to St. Louis at a rate named; that the goods arrived at St. Louis on March 13, 1877, and were tendered by the St. Louis Transfer Company, one of the connecting companies of the defendant's line, to the St. Louis and Iron Mountain Railroad, which road refused to receive them, because at that season of the year the Arkansas River, the route by which freight is carried between Little Rock and Pine Bluff, was low, and freight could not readily be forwarded from Little Rock to Pine Bluff; and, therefore, a rule had been adopted by the Iron Mountain Road which required that merchandise destined for Pine Bluff should be marked in care of some forwarding company at Little Rock, as the Iron Mountain Road only extended to Little Rock, and not to Pine Bluff; that upon the refusal of the Iron Mountain Road to receive the goods, they were stored by the said St. Louis Transfer Company, one of the defendant's connecting lines, in its warehouse at St. Louis, where they remained until January, 1880, almost three years, when, on an order from the agent of the defendant, they were, at the plaintiff's request, delivered at St. Louis to a firm for his benefit. The goods were appraised and found damaged in the sum of $429.50. The general agent of the defendant, Mr. Wheelock, testified that about six weeks after the goods had been shipped, consignors informed him that the goods had not yet reached their destination, and he promised to send out tracers for them; that he did not, however, inform the consignors of the whereabouts of the goods until May 16, 1877, which was nearly three months after the goods had been shipped, and six weeks after their non-arrival had been reported to him. The consignee refused to receive the goods then, because the season for their sale had passed, and they had greatly declined in value. The testimony of the plaintiff is, that, had the goods been delivered to him in season they would have been worth forty per cent more to him than the invoice price; that at one time he was informed that the goods were somewhere in Texas.

The plaintiff undertook to show that neither he nor the consignors had any knowledge of the existence of the rule under which the Iron Mountain Road declined to receive the goods; that the defendant, its officers and agents, when it received the goods, knew of the existence of this rule, and contracted with respect to it; that no notice was given the plaintiff or the consignors, by the defendant or anyone else, of the refusal of the Iron Mountain Road to receive the goods; that the rule under which the Iron Mountain Road refused to receive the goods was revoked six days after the goods arrived in St. Louis; that the defendant knew of such...