Lord & Bushnell Co. v. Texas & N. O. R. Co.

• Decision Date: 24 January 1911
• Citation: 155 Mo. App. 175,134 S.W. 111
• Court: Missouri Court of Appeals
• Parties: LORD & BUSHNELL CO. v. TEXAS & N. O. R. CO.

134 S.W. 111

155 Mo. A. 175

LORD & BUSHNELL CO. v. TEXAS & N. O. R. CO.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

1. CARRIERS (§ 73)—DIVERSION OF SHIPMENT —RIGHTS OF SHIPPER.

A shipper has the right to stop or divert a car at an intermediate point.

2. CARRIERS (§ 46)—CONTRACT FOR SHIPMENT —LAWS GOVERNING.

Ordinarily a shipment contract is governed by the laws of the state where it is made.

3. CARRIERS (§ 177)—CONNECTING CARRIERS — CONTRACT FOR SHIPMENT—LAWS GOVERNING.

A domestic law making an initial carrier liable for negligence of connecting carriers does not apply to a contract of shipment made in another state.

4. CARRIERS (§ 173)—CONNECTING CARRIERS — LIABILITY OF INITIAL CARRIER.

At common law an initial carrier's liability for safe and reasonably prompt carriage of freight ends with its line and use of ordinary care in delivering to the connecting carrier, but the liability may be extended beyond the line by special contract.

5. CARRIERS (§ 170)—CONNECTING CARRIERS — LIABILITY OF INITIAL CARRIER.

An initial carrier's obligation to carry freight beyond its line can be shown by usage or conduct.

6. CARRIERS (§ 174)—CONNECTING CARRIERS — PERFORMANCE OF INITIAL CARRIER'S DUTY.

An initial carrier of freight destined beyond its line undertaking only to transport to the point most convenient to the destination reached by its line performs its duty by delivering to the connecting carrier.

7. CARRIERS (§ 180)—CONNECTING CARRIERS — LIABILITY OF INITIAL CARRIER.

Where an initial carrier contracts for a through shipment, the connecting carriers are regarded as its agents making it liable for their negligence, notwithstanding a provision in a contract exempting it from liability beyond its line.

8. CARRIERS (§ 180)—CONNECTING CARRIERS —EFFECT OF CONTRACT.

An initial carrier's contract to transport from a point on its line to C. via a certain connecting carrier "at" K., an intermediate point beyond the initial carrier's line, is a contract for through shipment, making the initial carrier liable for negligence of a connecting carrier in preventing exercise of the shipper's right to divert the shipment at K. by taking the car over another route, notwithstanding a provision in the contract exempting it from liability for connecting carrier's negligence.

9. CARRIERS (§ 79)—FREIGHT—ROUTING DIRECTIONS—EFFECT.

A carrier must conform to the shipper's routing directions, except as to perishable goods, where conformity would cause injury to the shipment.

10. CARRIERS (§ 173)—FREIGHT—ROUTING DIRECTIONS.

A shipper suing on a contract for through shipment can recover for a connecting carrier's failure to comply with a routing direction preventing a diversion of the shipment as a negligent breach of defendant's contract obligation.

11. JUSTICES OF THE PEACE (§ 91)—PLEADING—REQUISITES.

Formal pleadings are not required in justice's court, and much latitude is allowed in the statement of a cause of action; it being sufficient if the statement affords reasonable notice to the adversary of the claim relied on and operates to bar another suit on the same cause of action.

12. CARRIERS (§ 184)—CONNECTING CARRIERS —PLEADING—VARIANCE.

A variance between allegation that defendant carrier agreed to carry freight to an intermediate point and there deliver to a connecting carrier, and proof of a through shipment via the connecting line "at" that point, was immaterial, especially where the bill of lading was filed with the statement.

13. PLEADING (§ 388)—IMMATERIAL VARIANCE—EFFECT.

Under the express terms of Rev. St. 1909, §§ 1846, 1847, when a variance is immaterial, a court can find the facts according to the evidence.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by the Lord & Bushnell Company against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lee W. Hagerman and C. S. Burg, for appellant. J. M. Lashly and Glendy B. Arnold, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the breach of a contract of carriage. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff is an incorporated company engaged in the lumber business in the city of Chicago, Ill., and defendant is an incorporated railroad company engaged in the business of a common carrier of goods between the towns of Hyatt and Dallas, Tex. It appears plaintiff's consignor consigned a car load of lumber to it over defendant's railroad at Hyatt, Tex., for delivery to plaintiff at Chicago, Ill., with routing directions via Chicago, Rock Island & Pacific Railway Company at Kansas City, Mo. Of course, plaintiff had the right to stop or divert the car at an intermediate point on the route, and it attempted to do so at Kansas City for the purpose of furnishing the lumber therein to its customer, Swift & Co., at that place. But, instead of sending the car through Kansas City according to the directions on the bill of lading, defendant's connecting carrier, the Chicago, Rock Island & Pacific Railway Company, transported it through St. Joseph, Mo., and made delivery to plaintiff at Chicago. Because of this an expense of $98.04 was entailed on plaintiff in transporting the car back from Chicago to Kansas City. By this suit plaintiff seeks to recover this amount, and declares upon the contract of carriage for the recovery. The breach of such contract alleged is that defendant failed to observe its provision or shipping direction thereon to transport the lumber through Kansas City where it might be intercepted.

Defendant company owns and operates a line of railroads in the state of Texas, the city of Dallas in that state being its northern terminus, at which point it connects with the Chicago, Rock Island & Pacific Railway Company. It appears the Chicago, Rock Island & Pacific Railway Company proceeds from Dallas, Tex., to Topeka, Kan., and thence maintains two lines, one through Kansas City, Mo., and another through St. Joseph, Mo., which presently converge east of both places and run into Chicago, Ill. The shipment of lumber involved here should have been transported through Kansas City by the Chicago, Rock Island & Pacific Railway Company, defendant's connecting carrier, but, as said, it was forwarded through St. Joseph instead. The contract of affreightment was entered into in the state of Texas by plaintiff's consignor and agent for its benefit, and ordinarily should be controlled by...