Milne v. Chicago, Rock Island & Pacific Ry. Co.
| Decision Date | 21 February 1911 |
| Parties | W. W. MILNE et al., Respondents, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
Judgment affirmed.
W. F Evans and Robert & Robert for appellant.
(1) The demurrer to the evidence should have been sustained. The lumber was never delivered to the defendant. Yoakum v Dryden, 26 S.W. 312; Railroad v. Hodde, 42 Tex. 467; O'Bannon v. Exp. Co., 51 Ala. 481; Railroad v. Echols, 97 Ala. 556; Truax v. Railroad, 3 Hous. (111 Dela.) 233; Tate v. Railroad, 78 Miss. 842. (2) There was no evidence that any lumber was ever placed in the car. The so-called "invoice" of the Benton Lumber & Mfg. Co. was inadmissible and proved nothing. It was not a book entry, not shown to have been made contemporaneously with a transaction, was simply an unsigned inspector's report, not shown to have been made in the usual course of business, nor that it was Easley's duty to write such a paper, nor that he had any knowledge of the facts of which he wrote, and was a memorandum of one not a party to this suit. Wilcoxsen v. Dorr, 139 Mo. 673; Robinson v. Smith, 111 Mo. 207; Milling Co. v. Walsh, 108 Mo. 277; Meek v. Railroad, 129 Mo.App. 507; Council v. Railroad, 123 Mo.App. 444; Nelson v. Nelson, 90 Mo. 460; Wells v. Hobson, 91 Mo.App. 379; Owen v. Bray, 80 Mo.App. 526; Martin v. Nicholls, 54 Mo.App. 594; Chaffee v. U.S. 18 Wall. 516; 1 Smith L. C. 575; 1 Greenleaf Ev. (16 Ed.), pp. 204, 205; Jones Ev. (2 Ed.), p. 401. (3) The so-called invoice was at the most evidence of a collateral matter and therefore inadmissible against the defendant. Jones on Evidence (2 Ed.), sec. 319; Chambers v. Bernasconi, 1 Tyrw. 342; S. C., 4 Tyrw. 531; 1 Smith L. Cases 581; Woodes v. Dermet, 12 N.H. 510; Little v. Wyatt, 14 N.H. 23; Poultney v. Ross, 1 Dall. 238; Deas v. Dolby, 1 N. & McC. 436; Williamson v. Doe, 7 Black J. 12. (4) Evidence of the transactions between the plaintiffs and Easley was incompetent. The communications between plaintiffs and their agent were not binding upon the defendant. Furthermore, Easley was dead. O'Neil v. Crain, 67 Mo. 250; Schluter v. Wiedenbrocker, 23 Mo.App. 440; Schweppe Gro. Co. v. Nolin, 83 Mo.App. 76; Hutchinson v. Brassfield, 86 Mo.App. 40; R. S. 1899, sec. 4652; Cahill v. Elliott, 54 Mo.App. 387.
W. H. Allen for respondents.
(1) There was ample evidence both of the delivery of the goods and the due issuance of the bill of lading. And where, as in this case, the court sitting as a jury, hears the evidence and renders a general judgment, and no instructions or declarations of law are asked or given, the finding of the trial court will not be disturbed on appeal if there is any substantial evidence to support the judgment. Crain v. Peterman, 200 Mo. 298; Ins. Co. v. McDearmon, 133 Mo.App. 674; Wilson v. Reddick, 131 Mo.App. 455; Abbott v. Whitener Gro. Co., 135 Mo.App. 706; Warner v. Close, 120 Mo.App. 211; Keyes Farm and Dairy Co. v. McCrady, 120 Mo.App. 670; Collard v. Burch, 138 Mo.App. 94. (2) A carrier's liability begins when it receives freight for immediate shipment, and is not dependent on the issuance of a bill of lading. Gregory v. Railroad, 46 Mo.App. 574; Berry v. Railroad, 122 N.C. 1002; Grand Tower, etc., Co. v. Ellmon, 89 Ill. 244; Garner v. Railroad, 79 Ark. 356; Mason v. Railroad, 25 Mo.App. 473; Lackland v. Railroad, 101 Mo.App. 420. (3) Where a railroad company places a car on its side track with the agreement implied, if not expressed, that it will move the car when loaded and carry the freight to its destination, and the car is loaded by the shipper and notice thereof given to the railroad company, and nothing remains to be done by the shipper, the delivery is complete, and the company becomes liable for the loss, whether a bill of lading were issued or not. Railroad v. McKenzie, 75 Ark. 100; Railroad v. Lymser, 38 Ill. 354 (87 Am. Dec. 301); Railroad v. Murphy, 60 Ark. 330. (4) A memorandum or entry made contemporaneously with a transaction, in the regular course of business, by one who had knowledge of the facts in question, at a time when no controversy existed concerning the matter, is admissible in evidence after the death of the person making it upon proof of the handwriting of the deceased. Jones on Evidence (2 Ed.), sec. 319; Greenleaf on Evidence (16 Ed.), sec. 120a; Bader v. Schult & Co., 118 Mo.App. 22; Hoover v. Gehr, 62 Pa. St. 136; Adell v. Culvert (Pa.), 42 Am. Dec. 317; Railroad v. Murphy, 60 Ark. 333. (5) The invoice is admissible in evidence just as if the entries contained therein had been made in the books of the deceased. There is no difference between an entry of this sort and a so-called book entry. Jones on Evidence (2 Ed.), sec. 319; Railroad v. Iron Works Co., 117 Mo.App. 165; Stephan v. Metzger, 95 Mo.App. 609; Kendall, Admr., v. Field, 14 Me. 30; Smith v. Smith, 4 Harrington (Del.) 532; Roland v. Burton, 2 Harrington (Del.) 288.
This is a suit against a common carrier on the obligation of an insurer annexed by law to its calling, for the value of a carload of lumber which was lost to plaintiffs while in its possession. Plaintiffs recovered and defendant prosecutes the appeal. Plaintiffs are co-partners and conduct a wholesale lumber business in the city of St. Louis, and defendant is an incorporated railroad company, engaged in the business of a common carrier of freight between Price, Arkansas, and St. Louis, Missouri. The lumber involved was loaded on defendant's car at what is spoken of in the evidence as a "blind switch" at Price, in the State of Arkansas, on December 16th, and afterwards consumed by fire that night. The "blind switch" referred to at Price is but a railroad siding where cars are loaded and at which defendant is not represented by a depot or station agent. Price is located about twelve miles east of Hot Springs, and it is the rule for bills of lading with respect to such cars as are loaded there to be issued by defendant's agent at a near-by station. Defendant resists liability for the car of lumber on the theory that it had not received it for shipment at the time of its loss and insists that, though its bill of lading was outstanding therefor, the same was procured by plaintiffs' consignor and agent through a fraudulent representation to the assistant of its agent at Hot Springs.
There is no doubt that in some circumstances a common carrier may become responsible for the property intrusted to its care for transportation even before a bill of lading is issued; but the proof does not disclose that situation here. There is no evidence that the car was placed upon the siding at Price for the particular purpose of receiving this shipment of lumber and, therefore, operating an invitation to load it, nor does it appear defendant's agent accepted the goods with directions to transport the same and deliver to the consignee, aside from the transaction which occurred when the bill of lading was issued. The liability on this score must be determined alone by reference to the acceptance of the shipment under the bill of lading and its recital as to defendant's receiving the same in good order for transportation to the plaintiffs at St. Louis. Plaintiffs introduced the bill of lading as prima facie proof of their case.
It is made to appear on the part of defendant that one, Easley, who was a dealer in lumber and a shipper from the point in question, called upon defendant's station agent at Hot Springs on December 16th and informed him that he had loaded a car of lumber at defendant's side track at Price, twelve miles from there, for plaintiffs, and requested the agent to issue a bill of lading therefor. Defendant's agent says he declined to issue the bill of lading for the reason he had not seen the car of lumber, and further that it was defendant's rule that, for cars consigned to St. Louis from that point, an agent east of Price should issue the bill of lading, but afterwards a bill of lading was issued to Easley for the identical car of lumber by his assistant in the office and that such bill of lading was obtained from his assistant by a false representation on the part of Easley. Defendant's assistant also testified that Easley called upon him late in the afternoon and procured the issue of the bill of lading by him through stating the agent, Mr. Reamey, had directed it. One, Murphy, also gave testimony to the same effect, but in force of his statement was greatly impaired in the cross-examination.
It is conceded defendant's assistant had authority in proper circumstances to issue bills of lading, such as that involved here, and to sign the agent, Mr. Reamey's, name thereto as he did in this instance. The bill of lading for the car of lumber was issued to Easley in the afternoon and it seems was mailed to plaintiff that night or the next day with an invoice of the contents of the car attached. Easley himself was not a witness at the trial, for it appears he departed this life between the time of shipping the lumber and the institution of the suit. There can be no doubt that the duties and obligations of a common carrier with respect to the goods commence with their delivery to it that is, as soon as the delivery is complete, so as to place upon the carrier the exclusive duty of seeing after their safety. It is true, too, that where the carrier places a person in charge of the business at a depot and holds him out to the public as being qualified with the requisite authority to receive shipments, a delivery to and an acceptance by such agent of the goods is a delivery to the carrier. [Hutchinson on Carriers (3 Ed.), secs....
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