Meyers v. Missouri, K. & T. Ry. Co.

• Decision Date: 01 October 1906
• Citation: 120 Mo. App. 288,96 S.W. 737
• Court: Missouri Court of Appeals
• Parties: MEYERS v. MISSOURI, K. & T. RY. CO.

96 S.W. 737

120 Mo. App. 288

MEYERS v. MISSOURI, K. & T. RY. CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

1. CARRIERS—CONTRACT TO CARRY TO DESTINATION.

The G. Company, a common carrier, received goods of plaintiff for transportation to L., a point beyond its own line, received the full amount of charges for through transportation, and issued a bill of lading naming L. as the destination, which, though stipulating that "the responsibility of each carrier is to cease at the station where said freight leaves its line, when the property is to be delivered to connecting road or carriers," mentioned no other carrier as a party to the contract, and did not provide that G. would carry the property only to the end of its own line. Held, that the contract was one by G. alone to carry the property to its destination, and that it and the M. Company, which, as agent of G., received the goods at the end of G.'s line for carriage to L., were not joint contractors.

2. SAME—JOINT CONTRACT—PLEADING.

A petition alleging that defendants were common carriers, that there existed between them a joint traffic arrangement for transportation of freight from points on the line of one defendant to points on the line of the other, that plaintiff delivered to defendant G., at F., and it received for transportation over its line and that of defendant M., goods of plaintiff, for which G., in consideration of freight charges, issued a bill of lading, and agreed on behalf of itself and M. to transport and deliver them to plaintiff at L., which agreement was afterwards adopted and ratified by M., and the goods were delivered to M. at K., and that M. failed to deliver part of the property to plaintiff at the place of delivery, does not state a case of joint contract by defendants.

3. SAME—DELIVERY OF FREIGHT TO CONNECTING CARRIER—EVIDENCE—RECEIPT.

Testimony of the agent of the G. Company at K., the terminus of G.'s line, that the goods which G. received of plaintiff at F. under a contract to carry them to L., a point beyond its line, arrived intact at K., and were sent over in wagons to the yards of the M. Company, a connecting carrier, the waybill and a receipt for the goods being sent by messenger to M.; that a few days later the receipt, bearing the signature of M.'s agent, was returned to G.'s office by railroad mail, an initial letter following the signature indicating that the name of M.'s agent had not been signed by him; that G.'s agent did not know of his own knowledge who signed the receipt, or that any of the property had been delivered to M., but that in this instance he followed the usual course of dealing observed by the two carriers in like cases, and the receipt came back to him through the customary channel, signed by the same person and in the same manner as other like receipts had been signed; and that it was not customary for freight agents to sign such receipts, but to permit that to be done by a receiving clerk, together with proof that M. delivered all the property, except a missing box, to plaintiff at L.—tend to show that the receipt was regularly issued by M., and to authorize its admission in evidence in an action against M. for the missing box; its liability depending on proof that it received the box in the course of its transportation.

4. SAME.

The initial carrier of goods sent them to the connecting carrier, accompanied by a receipt containing a list of the articles, among which was "1 box books," following which was "1 box household goods." The connecting carrier signed and returned the receipt, with a check mark opposite "1 box books," and with the word "short" written at the bottom of the paper opposite a similar check mark indicating that the box of books was not with the goods received. Held, that prima facie the receipt was an admission by the connecting carrier that it received the box of goods, imposing on it the burden of overcoming the presumption arising therefrom, and that this was not conclusively done, but only made a question for the jury, by the fact that the consignee made no claim that the box of books was not delivered to him, but merely claimed that the box of goods was not delivered to him.

5. SAME — LIMITING LIABILITY FOR LOSS— CONSIDERATION.

The agreement in a contract of affreightment to limit the carrier's liability in case of loss of the goods to $5 per hundredweight fails for lack of consideration; the contract disclosing no consideration.

6. SAME—REDUCED RATE—EVIDENCE — PRESUMPTION.

The contract of affreightment in the case of an interstate shipment having expressed no consideration for the agreement limiting the carrier's liability, the carrier may not show a reduced rate as a consideration, unless it shows that the claimed reduced rate was included in the schedule of rates filed with the interstate commerce commission and was duly posted, and so was a rate that the carrier could offer; there being no presumption that this was the case.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Special Judge.

Action by Andrew J. Meyers against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Geo. P. B. Jackson, for appellant. Sheley & White and C. C. Madison, for respondent.

JOHNSON, J.

This action was brought against the Missouri, Kansas & Texas Railway Company and the St. Joseph & Grand Island Railway Company to recover the value of a box of household goods lost in transportation. Before the case was tried the Grand Island Company was dismissed at the instance of plaintiff, and the cause proceeded against the remaining defendant, resulting in a judgment for plaintiff in the sum of $175, from which defendant appealed.

On June 25, 1903, the Grand Island Company, a common carrier, received from plaintiff at its station at Fairbury, Neb., a shipment of household goods (in which was included the box afterwards lost), for transportation from Fairbury to Lehigh, Ind. T., a point on the line of the Missouri, Kansas & Texas Railway Company. Plaintiff paid the receiving carrier $21.80, the full amount of the charges demanded for through transportation. This was at the rate of $1.30 per 100 pounds, a rate previously fixed by the agreement of both carriers and in force at the time the shipment was received. A shipping contract was executed by the receiving carrier and plaintiff, in which it was expressly stipulated that "the responsibility of each carrier is to cease at the station where said freight leaves its line, when the property is to be delivered to connecting road or carriers." Other stipulations in the contract provide for various limitations of the common-law liability of the carriers, but no special consideration was expressed for these agreements. The Grand Island Company carried the shipment to Kansas City, the end of its line, and there delivered it to defendant. In due time the goods were delivered to the consignee by defendant at Lehigh, with the exception of the box in controversy.

Defendant insists that the instruction in the nature of a demurrer to the evidence, asked by it, should have been given, and first we will decide the points made in support of that contention. It is urged by defendant that a different cause of action from that alleged in the petition was tried and submitted to the jury; that the cause pleaded is founded on the joint contract of the two carriers, but the recovery was had upon the separate obligation of the appealing defendant. Notwithstanding the rule expressly recognized by statute (Rev. St. 1899, § 892), which makes the liability of joint promisors or obligors several as well as joint and consequently permits a plaintiff at his election to maintain an action on a joint contract against a part or all of those who are bound to respond to him for a breach thereof, a cause alleged that is based on a joint contract cannot be sustained by proof of a cause founded on the separate contract of one of the alleged joint promisors. In such case the difference between allegation and proof is not to be regarded as a mere variance, which is cured by a verdict under the statute, but as a total failure of proof. Bagnell Lumber Co. v. Railroad Company, 180 Mo. 420, 79 S. W. 1130.

After alleging in the petition that both defendants are common carriers for hire, and that there existed between them a joint traffic arrangement for the transportation of freight from points on the line of one defendant to points on the line of the other, plaintiff alleges "that on or about June 25, 1903, he delivered to defendant St. Joseph & Grand Island Railway Company, at Fairbury, Neb., and defendant received for transportation to Lehigh, I. T., over its line and the line of its codefendant, certain goods and chattels belonging to plaintiff, for which said defendant St. Joseph & Grand Island Railway Company, in consideration of certain freight charges, issued a receipt or bill of lading, and agreed, on behalf of itself and its codefendant, to transport and deliver same to C. M. Fulks, as agent of plaintiff at said Lehigh, which said agreement was afterwards adopted and ratified by said defendant Missouri, Kansas & Texas Railway Company, and the said goods were delivered to said Missouri, Kansas & Texas at Kansas City." Then follows...