Marshall Medicine Co. v. The Chicago & Alton Railway Co.

• Decision Date: 03 June 1907
• Citation: 104 S.W. 478,126 Mo.App. 455
• Parties: MARSHALL MEDICINE COMPANY, Respondent, v. THE CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

104 S.W. 478

126 Mo.App. 455

MARSHALL MEDICINE COMPANY, Respondent, v. THE CHICAGO & ALTON RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 3, 1907

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

AFFIRMED.

Cause affirmed.

Scarritt Scarritt & Jones and Chas. M. Miller for appellant.

(1) The shipment was not a through shipment to Preacher, Virginia but to St. Louis only. McCann v. Eddy, 133 Mo. 68; Nenno v. Railway, 105 Mo.App. 549. (2) No authority was shown in the station agent to execute a bill of lading for a through shipment to Preacher, Virginia. Smith v Railway, 112 Mo.App. 615; Sewing Machine Co. v Railway, 70 Mo. 678; Minter Bros. v. Railway, 56 Mo.App. 282; Faulkner v. Railway, 99 Mo.App. 424. (3) Plaintiff failed to prove any damages. Blackmer v. Railway, 101 Mo.App. 557. (4) Incompetent evidence admitted. Grain Co. v. Railway, 96 S.W. 681, and cases cited.

Karnes, New & Krauthoff and John N. Davis for respondent.

(1) Appellant's contention that the shipment in question was not a through shipment to Preacher, Virginia, but to St. Louis only is not supported by the law or the evidence. Grain Co. v. Railroad, 176 Mo. 480; Sash & Door Company v. Railroad, 177 Mo. 641; R. S. 1899, sec. 5222; McLendon v. Railroad, 119 Mo.App. 128; Buffington & Lee v. Railroad, 118 Mo.App. 480; Ingwersen v. Railroad, 116 Mo.App. 152; Nenno v. Railroad, 105 Mo.App. 540. (2) Appellant's allegation of error for want of authority shown in the station agent to issue bill of lading is not well taken. In the first place the bill of lading was admitted in evidence without formal proof and the understanding of the trial court as well as respondent's attorney was that the bill of lading was admitted for all purposes. (3) Appellant alleges that there was not sufficient evidence to prove the damage in this case, namely, sixty-three dollars. Appellant has quoted sufficient of the record in his brief under this head to show that the damage was fully proven. Jennings v. Sparkman, 48 Mo.App. 246. (4) Appellant alleges that there was reversible error committed in the trial court by admitting in evidence letterpress copy of letter written November 28, 1902, to M. E. Robinette, at Block, Virginia. In reply to this will say that the letter was properly admitted in evidence, inasmuch as the railroad company's attorneys in the taking of the deposition of J. W. Guntner demanded that a copy of this letter be produced.

OPINION

BROADDUS, P. J.

--The plaintiff's suit is to recover the value of certain goods shipped over defendant's railroad, which it is alleged were not delivered to the consignees and were not returned to plaintiff. The bill of lading shows that the goods, consisting of two barrels of medicine and two boxes of medicine, were received by defendant as a common carrier on the thirteenth day of October, 1902, to be transported and delivered to Brooks & Fuller, Preacher, Virginia. The goods were carried by defendant to St. Louis, Missouri, where it delivered them to its connecting carrier, the Louisville & Nashville Railroad Co., which carried them to Preacher, Virginia. The consignees, Brooks & Fuller, refused to receive them. Afterwards they were delivered to one, Robinette, who claimed to be plaintiff's agent and who sold them and converted the proceeds to his own use. The plaintiff denied that Robinette was its agent in relation to the goods. The finding and judgment were for plaintiff, from which defendant appealed.

The contention of the defendant is that it is not liable for the default of its connecting carrier. This seems to be the controlling question in the case, as the question of Robinette's agency was settled in favor of plaintiff by the verdict of the jury. A reference to the testimony shows that plaintiff knew at the time of the shipment of the goods that Preacher, their destination, was not a station on defendant's road and that they would necessarily be transported by a connecting carrier from the end of plaintiff's line at St. Louis the remaining distance. There was a clause in the conditions annexed to the bill of lading to the following effect, "No agent of the company is authorized to contract for transportation of any freight beyond the stations on its line, or make any contract for transportation of freight within any special time." The defendant insists that the shipment of the goods over its line was only to St. Louis and was so understood by plaintiff. The fact that plaintiff knew that the goods would only be carried over defendant's line to that city and then delivered to a connecting carrier, does not support defendant's contention, and there is no other fact in evidence affecting the question.

The defendant's chief defense is, that its station agent had no authority to execute the bill of lading for a through shipment to a point beyond its line of railroad. A clause in the bill of lading forbade his making such a contract. In the absence of such a provision, prior to the enactment of section 5222, Revised Statutes 1899, the law was, that a common carrier may be bound by contract, express or implied, but not otherwise, to transport persons or property beyond the line of its own road. [Grover & Baker Sewing Machine Co. v. Railway, 70 Mo. 672.] And it seems that this rule has been applied in a number of cases since said enactment, viz.: Patterson v. Railroad, 47 Mo.App. 570; Turner v. Railroad, 20 Mo.App. 632; Crouch v. Railroad, 42 Mo.App. 248; White v. Railroad, 19 Mo.App. 400; Orr v. Railroad, 21 Mo.App. 333; Faulkner v. Railway, 99 Mo.App. 421. In the last case cited, it was held that, "when the shipper shows a written contract for carriage beyond the end of the road he should show the authority of the agent to make such contract." It is strange, but true, that no reference whatever is made to said section in any of said cases.

The section was afterwards construed in Dimmitt v Railway, 103 Mo. 433, wherein the court used the following language: "The consideration given by the Supreme Court to this question, and the conclusion reached by it so recently before this enactment, when taken in connection with the terms employed in the statute itself, leaves little room for doubt that the purpose of the Legislature was to prescribe a definite rule of liability for negligence of a common carrier in harmony with what has been denominated 'the English rule' upon the subject. Whereby such carrier, when he receives a parcel to be transported to a place beyond the terminus of his route, is to be held liable as such to the place of destination, in the absence of a specific contract to carry such parcel only to the terminus of his own route, or limiting his liability to loss or damage occurring on his own route. The enactment as thus construed becomes a rule of evidence by which to determine what the contract of the carrier is in the absence of a specific one in a given case, operates with no undue hardship upon the carrier, and is violative of none of his rights, constitutional or otherwise. By its provisions the act of acceptance by...