Little Rock Packing Co. v. Chicago, B. & QR Co.

• Decision Date: 23 October 1953
• Docket Number: 7872.,No. 7204,7205,7204
• Citation: Little Rock Packing Co. v. Chicago, B. & QR Co., 116 F. Supp. 213 (W.D. Mo. 1953)
• Parties: LITTLE ROCK PACKING CO. v. CHICAGO, B. & Q. R. CO. (KANSAS CITY STOCK YARDS CO. OF MAINE et al., third-party defendants). NEUHOFF BROS. PACKERS v. CHICAGO, B. & Q. R. CO. (KANSAS CITY STOCK YARDS CO. OF MAINE et al., third-party defendants). EBNER BROS. PACKERS v. CHICAGO, B. & Q. R. CO. (KANSAS CITY STOCK YARDS CO. OF MAINE et al., third-party defendants).
• Court: U.S. District Court — Western District of Missouri

116 F. Supp. 213

LITTLE ROCK PACKING CO. v.CHICAGO, B. & Q. R. CO. (KANSAS CITY STOCK YARDS CO. OF MAINE et al., third-party defendants).

NEUHOFF BROS. PACKERS v.CHICAGO, B. & Q. R. CO. (KANSAS CITY STOCK YARDS CO. OF MAINE et al., third-party defendants).

EBNER BROS. PACKERS v.CHICAGO, B. & Q. R. CO. (KANSAS CITY STOCK YARDS CO. OF MAINE et al., third-party defendants).

Nos. 7204, 7205, 7872.

United States District Court, W. D. Missouri, W. D.

October 23, 1953.

COPYRIGHT MATERIAL OMITTED

Lyne, Wendover & Blanchette, and Fritz Lyne, Dallas, Tex., Gage, Hillix, Moore & Park, and John Kreamer, Kansas City, Mo., for plaintiff, Little Rock Packing Co. and Neuhoff Bros., Packers.

Charles F. Lamkin, Jr., Kansas City, Mo., for plaintiff, Ebner Bros., Packers.

Eldon Martin, Chicago, Ill., Lathrop, Crane, Sawyer, Woodson & Righter, Sam D. Parker and Carl E. Enggas, Kansas City, Mo., for defendant, Chicago, B. & Q. R. Co.

Langworthy, Matz & Linde, Kansas City, Mo., for third-partyplaintiff, Chicago, B. & Q. R. Co., a corp.:

Roscoe C. Van Valkenburgh, Kansas City, Mo., for third-party defendants, Kansas City Stock Yards Co. of Maine, and Kansas City Connecting R. Co.

RIDGE, District Judge.

The above-entitled actions were consolidated for trial and are presently before the Court for decision on the merits.

Plaintiffs herein individually seek recovery for a substantial number of cattle which were lost during the Kansas City flood of July 13, 1951, allegedly due to defendant's negligence.Defendant, though denying liability, brings a third-party proceeding, seeking indemnity against the third-party defendants, the Kansas City Stock Yards Company and the Kansas City Connecting Railroad, for any and all damages which might be assessed against it, if recovery is allowed on the primary claims.

Federal jurisdiction is based on both diversity of citizenship and on 49 U.S. C.A. § 20(11).Plaintiffs Neuhoff Bros., Packers (hereinafter referred to as "Neuhoff") and Ebner Bros. Packers (hereinafter referred to as "Ebner") are both Texas corporations, with principal places of business in Dallas, Texas, and Wichita Falls, Texas, respectively; plaintiffLittle Rock Packing Company(hereinafter referred to as "Little Rock") is an Arkansas corporation, with its principal place of business in Little Rock, Arkansas.All are engaged in the meat packing industry and, concomitantly, in the purchase of livestock.Defendant, Chicago, Burlington & Quincy Railroad Company, is an Illinois corporation, with its principal office in Chicago, Illinois.The amount in controversy is in excess of $3,000.

Findings of Fact.

On July 11, 1951, E. N. Grueskin & Co., cattle order buyers at Sioux City, Iowa, purchased 113 head of cattle (valued at $33,651.16) to be shipped on consignment to Neuhoff at Dallas, Texas; 32 head of cattle (valued at $8,037.24) were purchased for Little Rock, to be shipped on consignment to Little Rock, Arkansas.In Sioux City, on the same date, one Doyle E. Potts(connected with W. W. Gary and Company, cattle and hog buyers) purchased 28 head of cattle (valued at $10,259.22) for Ebner, said cattle to be shipped on consignment to Wichita Falls, Texas.

Shortly after the purchase of the Neuhoff and Little Rock cattle, Mr. Harold Grueskin, a partner in E. N. Grueskin & Co., billed the cattle in question for shipment from Sioux City over the Chicago Northwestern Railroad to Kansas City, Missouri, with the Missouri Pacific Railroad as connecting carrier to Dallas, Texas, and the Missouri Pacific and the M. K. & T. railroads as connecting carriers to Little Rock, Arkansas.These billings were filed with the Chicago Northwestern Railroad agent at Sioux City, early in the afternoon on July 11, 1951.Within an hour thereafter, the Chicago Northwestern received word that its connecting carrier the Missouri Pacific Railroad could not accept the cattle due to floods south of Kansas City.It then notified Grueskin that it would not accept the cattle for shipment from Sioux City.

Immediately following the rejection by the Chicago Northwestern, Grueskin contacted Mr. A. Dirksen, livestock clerk for the defendant herein, the Chicago, Burlington & Quincy Railroad.Grueskin explained why the Chicago Northwestern had refused the shipment, and then asked if Burlington could accept the cattle.Although Dirksen, himself, had authority to accept the cattle, he thought it advisable to first check with his superiors.After being informed by his superiors that the cattle would be accepted for shipment, in spite of flood conditions, Dirksen immediately notified Grueskin, informing him that the cattle would go through "on schedule".The billings were then delivered to Burlington.The Neuhoff cattle were routed Burlington to Kansas City, and M. K. & T. from Kansas City to Dallas.The Little Rock cattle were routed Burlington to Kansas City, Kansas City Southern Railroad from Kansas City to Howe, Oklahoma, and Rock Island Railroad from Howe to Little Rock, Arkansas.Uniform Livestock Contracts (admittedly binding on the parties) were executed to this effect.At approximately this same time, defendant Burlington also contracted to ship the Ebner cattle, via Kansas City, to Wichita Falls, Texas, with the St. Louis-San Francisco Railroad as connecting carrier.Prior to this arrangement with defendant, Mr. Potts had first tried, as had Mr. Grueskin, to arrange shipment with the Chicago Northwestern, which turned down the Ebner cattle for the same reason it had turned down the Neuhoff and Little Rock shipments.The above fruitless negotiations with Chicago Northwestern were fully brought to Burlington's attention at the time it agreed to accept all the shipments involved.

Although the cattle were scheduled to leave Sioux City, Iowa, at 8:30 p. m., July 11, 1951, on Burlington's train No. 85-78, said train was delayed in departing for almost three hours, not leaving until 11:20 p. m., July 11th.After intermediate stops and delays, e. g., Lincoln, Nebraska, and St. Joseph, Missouri, Burlington trainNo. 85-78, on which the cattle were loaded, arrived in North Kansas City, Missouri, at 10:00 p. m., on July 12th, seven hours behind schedule.The cars containing all the plaintiffs' cattle were brought to the Kansas City Stock Yards four hours thereafter, at 2:00 a. m., July 13th, and unloaded for watering and feeding; the unloading was completed by 3:30 a. m., ninety minutes later.From that time forward, the cattle were under the care of third-party defendant, Kansas City Stock Yards Company.A complete schedule from the hour the cattle were delivered to the chute of the Sioux City Stock Yards, at 4:55 p. m., July 11th, until the time they were actually unloaded in Kansas City in the early hours of the morning, July 13th, will be found in Stipulations 28 and 29, signed by the parties herein.

The above facts acquire significance only in light of the conditions and circumstances existing during that fateful period from July 11th to July 16th, when the waters of the Kansas River rose in their fury to finally overflow, on July 13th, the levees protecting the Stock Yards and Central Industrial District of Kansas City, Missouri.

At the time defendant accepted plaintiffs' cattle for shipment, all parties thereto had knowledge of the threatening flood conditions existing in the Kansas River Valley and around the Kansas City area.As early as June 10, 1951, flood conditions existed in the Kansas River water-shed.Early on the morning of July 11th, more than four hours before defendant agreed to ship plaintiffs' cattle (and more than eleven hours before said cattle were scheduled to leave Sioux City) the Interstate Commerce Commission issued King's I. C. C. OrderNo. 52, authorizing all railroads serving Kansas, Missouri, Illinois and Kentucky, to reroute traffic over any available route because of "catastrophic" floods and high water in that area, regardless of any routing indicated on the shipping waybills.In that connection, there is testimony to the effect that defendant contacted Wilson & Co., of Kansas City, which had eight carloads of cattle on the same train with plaintiffs', destined to points in Alabama, Georgia and Tennessee, requesting permission to divert shipments at St. Joseph, Missouri.Notwithstanding the permission so granted, such cattle were not diverted by the defendant, but were transported to Kansas City and unloaded with the shipments presently considered.

During the night of July 11th, and early the following morning, while plaintiffs' cattle were but a few hours out of Sioux City, the Kansas River breached its levees fifty miles away from Kansas City, at Lawrence, Kansas, there causing more than $3,000,000 of damage.Because of flood conditions south of Kansas City, and when the cattle in question were only a few minutes out of Lincoln, Nebraska, defendant was notified (10:05 a. m., July 12th) by the M. K. & T. Railroad, the connecting carrier for the Neuhoff cattle, that it could not accept further cattle shipments out of Kansas City.Regardless, defendant did not alter the routing of said shipment.

At 10:00 p. m., July 12th, plaintiffs' cattle arrived at Murray Yards of defendant in North Kansas City, and were placed in the Stock Yards in the Central Industrial District four hours later, at 2:00 a. m., July 13th.At 4:10 a. m., July 13th, the Kansas City Southern Railroad, connecting carrier for the Little Rock cattle, sent a train out of Kansas City with ninety-four empty cars.Apparently no attempt was made to place the Little Rock cattle, which had arrived at Murray Yard, North Kansas City, some six hours earlier, on that departing Kansas City Southern train.Two other Kansas City Southern trains departed Kansas City after the scheduled arrival of Burlington's train No. 85-78(but before its actual arrival), with a number of empty cars.None of these Kansas City Southern trains handled livestock for the connection at...