Metals Refining Co. v. St. L.-S.F. Ry. Co.

• Decision Date: 29 January 1940
• Docket Number: No. 19406.,19406.
• Citation: 137 S.W.2d 977
• Parties: METALS REFINING COMPANY, A CORPORATION, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

137 S.W.2d 977

METALS REFINING COMPANY, A CORPORATION, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, A CORPORATION, APPELLANT.

No. 19406.

Kansas City Court of Appeals, Missouri.

January 29, 1940.

Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

Gossett, Ellis, Dietrich & Tyler for respondent.

(1) This action originated before a justice of the peace so that the pleadings are to be liberally construed. The statement sufficiently meets all requirements. The gist of the action is that the shipment was delivered to the Frisco as a common carrier for transportation and that the Frisco lost 8,097 pounds of metal while the car was in its possession. The evidence fully supports these allegations so that appellant is liable for breach of contract either at common law or under the bill of lading. The allegation that the bill of lading was issued by the Frisco did not create such a variance between pleading and proof as to defeat plaintiff's action. Walton v. Carlisle, 313 Mo. 268; Cash v. Wabash, 81 Mo. App. 109. (2) The liability of the appellant as an insurer began with the delivery of the goods to it as a common carrier for shipment regardless of who issued the bill of lading or whether any bill of lading was issued. 13 C.J.S., 288, section 145e; 1 Michie on Carriers, p. 424; Lust, The Law of Loss and Damage Claims (3 Ed.), 1931, p. 7; Gregory v. Wabash Ry. Co., 46 Mo. App. 574; Milne v. Railroad, 155 Mo. App. 465; Morrison Grain Co. v. Mo. Pac. 182 Mo. App. 339; Illinois Central v. Smyser, 38 Ill. 354; St. Louis, I.M. & S. Ry. Co. v. Murphy, 30 S.W. 419; Pine Bluff and A.R. Ry. Co. v. McKenzie, 86 S.W. 834. (3) Even though the bill of lading was issued by the Chicago & Alton, the Frisco was nevertheless liable for the loss occurring while it was in possession of the shipment. If the bill of lading controls the Frisco was liable thereunder since it was a necessary link in the through shipment from point of origin to point of delivery and the bill of lading provides "the carrier or party in possession of any of the property herein described shall be liable for any loss thereof." 13 C.J.S., 424; Galveston Wharf Co. v. Galveston, H. & S.A. Ry. Co., 52 Sup. Ct. 342, 285 U.S. 127, 76 L. Ed. 659; Fleming v. K.C. & S.B. Ry. Co., 89 Mo. App. 129; Missouri Pacific v. Wichita Groc. Co., 55 Kan. 525; Conley v. Railroad, 192 Mo. App. 534; Collier v. Wabash, 190 S.W. 969; Dietz v. Southern Pacific Ry. Co. et al., 225 Mo. App. 39, 28 S.W. (2d) 395; Griggs v. St. Louis & H.R. Co., 285 S.W. 159; United States v. St. Joseph Stock Yards Co., 181 Fed. 625; United States v. Northern Pac. Terminal Co., 181 Fed. 879; Kansas City Southern v. Rosebrook-Josey Grain Co. (Tex. Civ. App.), 114 S.W. 436.

J.W. Jamison, Henderson & Deacy and Thos. E. Deacy for appellant.

(1) Plaintiff, as the owner of a bill of lading covering an interstate shipment, pleads and proves a written contract of affreightment covering said shipment, and plaintiff having elected to sue on said contract is bound thereby. Since defendant was not a party to said contract, and had no contractual relationship with plaintiff, plaintiff cannot recover from defendant in this action and the court erred in setting aside the involuntary non-suit suffered by plaintiff, and in granting plaintiff a new trial. Merritt Creamery Co. v. Atchison, Topeka & S.F. Ry. Co., 128 Mo. App. 420; Wernick v. St. Louis-San Francisco Ry. Co., 131 Mo. App. 37; Blackmer & Post Pipe Co. v. Mobile & Ohio R.R. Co., 137 Mo. App. 479; Ford v. Wabash Ry. Co., 300 S.W. 769, 318 Mo. 723; Witting v. St. Louis-San Francisco Ry. Co., 14 S.W. (2d) 743, 101 Mo. 631; Mead v. M.-K. & T. Ry. Co., 183 Mo. App. 353; 49 U.S.C.A., sec. 20, par. 11, p. 87; Underwood v. Hines (Mo. App.), 222 S.W. 1037; Johnson v. Mo. Pac. Ry. Co. (Mo. App.), 187 S.W. 282; Adams Express Co. v. Croninger, 226 U.S. 491; Cudahy Packing Co. v. Bixby (Mo. App.), 205 S.W. 865; Bradford v. Hines (Mo. App.), 227 S.W. 889. (2) Plaintiff bases its action upon a written contract to carry freight, to which contract defendant was not a party, and, under the pleadings and evidence, defendant was neither an initial carrier or a connecting carrier of the shipment in controversy and covered by said contract, but plaintiff merely acted as switching agent for the contracting carrier, and, under the evidence and the law under the evidence, plaintiff cannot recover from the defendant in this action. Mo. Pac. R.R. Co. v. Reynolds-Davis Groc. Co., 268 U.S. 366; Utz v. Chicago, Burlington & Quincy Ry. Co. (Mo. App.), 208 S.W. 640; Houston E. & W.T. Ry. Co. v. Houston Packing Co. (Tex. Civ. App.), 221 S.W. 316; Parker-Bell Lumber Co. v. Great Northern Ry. Co., 69 Wash. 124, 124 Pac. 389. (3) Respondent having alleged and proved a written contract of affreightment must rely upon said contract for recovery and respondent cannot recover upon another contract which might have been proved at the trial of the cause. Appellant was not a party to the said written contract alleged and there was an entire failure of proof as against the appellant. Deisel-Wemmert-Gilbert Corp., v. David Chalmers T. Co. (Mo. App.), 104 S.W. (2d) 1029; Ringer v. Holtzhlaw, 112 Mo. 519; 20 S.W. 800; Cook v. Harrington, 54 S.W. (2d) 436. (4) Plaintiff's theory of the cause of action is determined from the pleadings filed in the trial court and plaintiff cannot change this theory upon appeal and be permitted to recover on a different theory from that alleged in the trial court. State ex rel. Massman Const. Co. v. Shain (Mo.), 130 S.W. (2d) 491; State ex rel Brotherhood of Locomotive Firemen and Enginemen v. Shain, et al. (Mo.), 123 S.W. (2d) 1; State ex rel. Bush v. Sturgis, 281 Mo. 598; 221 S.W. 91; Henry County v. Citizens Bank, 208 Mo. 209; 106 S.W. 622.

SPERRY, C.

Metals Refining Company, plaintiff below, sued St. Louis-San Francisco Railway Company, who was defendant. We will refer to the parties in that order in this court. Plaintiff took an involuntary non-suit and moved to set the same aside. From the order of the court sustaining said motion defendant has appealed.

Plaintiff's statement, originally filed in a justice of the peace court and never amended, alleged the following:

"That heretofore to-wit, and on or about the 2nd day of November, 1923, the defendant did accept a carload of antimonial lead weighing 61,021 pounds or 755 pigs at Kansas City, Missouri, agreeing to deliver same to the plaintiff at Hammond, Indiana, and did issue therefor an order bill of lading describing said shipment as aforesaid, which was sent with sight draft attached and relying thereon the plaintiff herein did pay for said shipment; that thereafter and when said shipment was delivered at Hammond, Indiana, to the plaintiff by the defendant, its agents and vice principals, same was short, 8,097 pounds or 90 pigs of lead; that said shortage and loss occurred while said shipment was in the charge and under the control of this defendant, its agents and vice principals and after it had issued its order bill of lading as aforesaid and that thereby the defendant became bound and obligated to pay this plaintiff for the value of said antimonial lead which was short as aforesaid; that the fair and reasonable value of said lead at said time was 6.01 cents per pound, or total of $493.92; that all of said sum has been duly demanded of the defendant and payment therefor has been refused." (Italics ours.)

The evidence disclosed that Midwest Metals Company, of Kansas City, hereafter called consignor, notified defendant that it desired to ship a carload of lead and defendant set out a car for it; that 61021 pounds of lead was loaded into a car on defendant's switch track, the car was duly sealed and defendant was notified that it was ready for movement; that consignor made out a bill of lading on the Chicago & Alton Railroad Company; that defendant moved the car to the yards of the Chicago & Alton Railroad Company for transportation to plaintiff, but when said car was received by the Chicago & Alton Railroad one of the seals had been broken; that the Chicago & Alton Railroad Company promptly weighed the car and its weight was some 8000 pounds less than it was when it was first sealed; that when originally loaded it contained 755 pigs of lead weighing 61021 pounds and when received by plaintiff it contained 665 pigs, and there was a shortage of about 8000 pounds of lead, or of the value sued for. The bill of lading together with a sight draft for the amount of the value of the lead attached, was forwarded to plaintiff who paid the draft, took up the bill of lading and accepted the lead. Plaintiff thereafter discovered the shortage and brought this suit for recovery. Defendant's switch tracks were the only tracks that served Midwest Metal Company's warehouse, and were exclusively the property of defendant. The bill of lading was in evidence and was produced from the files of defendant. It is defendant's contention that one may recover for loss of goods delivered to a common carrier for shipment on either of two different theories, to-wit:

(a) Action based on the contract of affreightment;

(b) Action based on tort for breach of the common law duty of a common carrier to safely deliver goods received by it for transportation.

While there are theories, other than the above mentioned, under which a common carrier might be held liable for loss of goods delivered to it for transportation, for the purpose of this case we need not consider such other theories. [Merritt Creamery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 128 Mo. App. 420.]

Assuming, for the purpose of discussion here, that plaintiff in this case might have elected to pursue either of the above theories, yet if it elected to pursue one of such theories, as disclosed by its pleadings, and fails to make a case under the theory pleaded and tried, it will not be permitted to recover on the other. [Wernick v. St. L. & S.F.R.R....