Marshall & Michel Grain Company v. Kansas City, Fort Scott And Memphis Railroad Company

• Decision Date: 30 June 1903
• Parties: MARSHALL & MICHEL GRAIN COMPANY v. KANSAS CITY, FORT SCOTT and MEMPHIS RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

75 S.W. 638

176 Mo. 480

MARSHALL & MICHEL GRAIN COMPANY v. KANSAS CITY, FORT SCOTT and MEMPHIS RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 30, 1903

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Affirmed.

L. F Parker and Pratt, Dana & Black for appellant.

At the close of evidence on the part of plaintiff the trial court should have sustained defendant's demurrer to the evidence, and at the close of all the testimony should have directed a verdict in favor of defendant: First. Because since the contract of carriage expressed in the bill of lading was, on defendant's part, to carry only over its own line, and as the alleged conversion (if there was any) occurred at Little Rock on the line of a connecting carrier and was the act of that carrier, there was no evidence of any failure on the part of defendant under the contract to discharge its duty to plaintiff. This suggests the point which gives this court jurisdiction of the appeal: that section 5222, Revised Statutes 1899, when construed and applied to the bill of lading introduced in evidence by plaintiffs as the trial court construed and applied it, was repugnant to article 1, section 8, of the Federal Constitution (the interstate commerce clause) and denied defendant the freedom of contract in such matters, which Congress alone can regulate. Dimmitt v. Railroad, 103 Mo. 440; McCann v. Eddy, 133 Mo. 59, 174 U.S 580; Richmond, etc., Co. v. Patterson Co., 92 Va. 670, 169 U.S. 311; Hanley v. Railroad, 23 S.Ct. 214; Patterson v. Railroad, 56 Mo.App. 660; Minter Brothers v. Railroad, Ibid 290. Second. If it be held that defendant was legally responsible for what occurred at Little Rock, still it was entitled to a verdict and to a peremptory charge therefor, because there was no conversion of the corn by its connecting carrier. Sparks v. Purdy, 11 Mo. 226; Koch v. Branch, 44 Mo. 542; Nansen v. Jacob, 93 Mo. 331; Niemetz v. Assn., 5 Mo.App. 63; Kreher v. Mason, 33 Mo.App. 297. There was no demand for the corn or offer to surrender the bill of lading. Ross v. Clark, 27 Mo. 550.

Thomas Dolan for respondent.

(1) Appellant's connecting carrier became the agent of appellant for the delivery of this corn to respondent or its order at Little Rock, but they deliver the corn instead to the Little Rock Grain Company, and whether as consignee or warehouseman, it was determined as an issue of fact that it was delivered to the grain company as consignee. Thus appellant converted the corn, and after having converted it sought to have the respondent waive the conversion by taking the corn back, and respondent finally did take the corn and sell it under the stipulation giving to appellant credit for the amount received therefor. All the questions in this case have been once decided against appellant in Marshall v. Railroad, 74 Mo. 581. (2) The case of Railroad v. McCann in 174 U.S. 580, does not bear out appellant's contention. Hart v. Railroad, 69 Iowa 490; Solon v. Railroad (Iowa), 63 N.W. 692; Bags v. Railroad (N. C.), 14 L. R. A. 596. (3) The authority cited on behalf of appellant as to what constitutes a conversion is not applicable to the case at bar. It is an elementary principle that "a carrier who, without excuse, delivers goods to the wrong person, converts them." Bishop on Non-Contract Law, sec. 405; Railroad v. White, 6 Bush 251; Roberts v. Yarboro, 41 Tex. 449; Chaflin v. Railroad, 7 Allen 341. The delivery of goods even to a connecting carrier for transportation when the shipper has designated another connecting carrier, is a conversion of the goods. Wiggins Ferry Co. v. Railroad, 128 Mo. 248. (4) Then, again, appellant makes a point that the railroad company offered to return the corn after it had been delivered and held ten days and then delivered back again into the cars. This can not excuse the conversion. "For the return of chattels after a conversion will not defeat the right of action though it may go in mitigation of damages." Sparks v. Purdy, 11 Mo. 219. (5) The damages were reduced in the case at bar by the sale of the corn on stipulation between appellant and respondent, and appellant gives due credit for the amount received.

OPINION

BURGESS, J.

On August 5, 1895, Marshall & Antles, of whom plaintiffs are successors, delivered to the defendant a car of corn for shipment over its railroad from Joplin to Little Rock, Arkansas, with instructions on the bill of lading to notify the Little Rock Grain Company; Little Rock was not on the line of defendant's road, but the agent of defendant at Joplin, having authority to so do, contracted with the shippers to transport said car of corn to Little Rock, and received therefor the entire freight charge and rate between Joplin and Little Rock, and delivered to the shippers a bill of lading for said car of corn. The bill of lading showed the receipt by defendant from Marshall & Antles of one car of corn said to weigh 33,375 pounds. "to be transported over the line of this [defendant's] railway to . . . and delivered after payment of freight and advance charges in like good order to the consignee, or a connecting carrier if the same are to be forwarded beyond the line of this company's road, to be carried to the place of destination; it being expressly agreed that the responsibility of this company shall not extend beyond its own line."

The bill of lading also showed that the corn was consigned, "S. O. notify Little Rock Grain Company, Little Rock, Arkansas."

The distance from Joplin, Missouri, to Little Rock, Arkansas, by the route which the car was to travel, that is, over defendant's road to Jonesboro and from there over the St. Louis Southwestern railroad (commonly spoken of as the Cotton Belt road), was about four hundred miles. A reasonable time for the transit would be from four to six days, and the car reached Little Rock, August 10, 1895.

The shippers had sold the corn to the Little Rock Grain Company for $ 268.20, and upon receiving said bill of lading from appellant's agent, they drew a draft through their bank at Joplin upon the Little Rock Grain Company for that amount. The draft was deposited in said bank at Joplin with the bill of lading attached and went through regular collection channels by way of Kansas City to Little Rock, where on August 9, 1895, it was presented by the clerk of the German National Bank in that city to the Little Rock Grain Company for acceptance. The drawee refused to accept the draft because the corn had not arrived; the clerk thereupon protested the draft for non-acceptance for that reason, and notified plaintiff.

The draft was returned to plaintiff through the bank at Joplin and the protest fees, amounting to $ 3.46, were charged to them. Plaintiff had defendant's agent trace the corn, and on August 13th, said agent (Conley) received from the Cotton Belt agent at Little Rock a telegram which was at once shown to plaintiff, reading: "Car F. S. & M. 2194 arrived 10th; delivered Little Rock Grain Co., Aug. 12th." The same day (August 13th) plaintiff drew another draft on the grain company for the amount of the first one plus the protest fees and deposited it in the same Joplin bank with the same bill of lading attached. This draft on August 17, 1895, was presented by the same bank clerk at Little Rock to the grain company there for acceptance; thereupon the grain company telegraphed plaintiff: "Your draft with protest fees added is here. Is subject to protest. Will pay only invoice face. This ultimatum." The plaintiff having made no reply the grain company refused to accept the draft because "the amount was not correct," and the bank clerk protested it and notified the plaintiff thereof.

The second draft with original bill of lading attached was returned through the same channels to the shippers, who kept the bill. They made no effort to secure the corn, gave no directions for its disposition, nor was the bill of lading ever presented to appellant or its connecting line, the Cotton Belt Railway Company, nor was any demand ever made by the shippers or anybody for them upon either of said railroad companies for the corn. Nor did they ever give the purchaser any chance to pay the price agreed on and get the corn; instead they held on to their shipper's order bill of lading and refused to give any directions for the disposal of the corn, though frequently asked to do so.

After the arrival of the corn at Little Rock the car was placed upon the warehouse track of the grain company where it was unloaded by that company (its identity being preserved) as a warehouseman under a general bond given by the Cotton Belt Railway Company. A few days afterwards the bill of lading not having been presented by the grain company, the Cotton Belt Company's agent at Little Rock demanded the surrender of the bill or of the corn; the bill of lading not being produced for the reasons already stated, the corn was at once reloaded into a car furnished by the Cotton Belt Company, being the identical corn which plaintiff had shipped and in exactly the same condition as when it reached Little Rock, there being no claim or pretense that it had sustained any damage whatever.

On August 22, 1895, the shippers were asked by the Cotton Belt Company for directions as to the disposition of the corn, whereupon they replied:

"Yours 1st. Have just notified Memphis road we would not accept car since it has been delivered once. Our draft now amounts to $ 275.12, and will take matter up with G. F. A. Memphis road and get protection, and you to protect yourself had better wire authority to make draft at once. As to terms, etc., it is quite evident that we know as much, or more, about terms than you do about S. O. shipments, and advise you to act promptly in this...