Missouri Cobalt Co. v. Missouri Pac. R. Co., 18030

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Bruere
• Citation: 255 S.W. 970
• Parties: MISSOURI COBALT CO. v. MISSOURI PAC. R. CO. et al.
• Docket Number: No. 18030,18030
• Decision Date: 06 November 1923

255 S.W. 970 MISSOURI COBALT CO.
v.
MISSOURI PAC. R. CO. et al. No. 18030 St. Louis Court of Appeals, Missouri. November 6, 1923. Rehearing Denied December 6, 1923.

Appeal from Circuit Court, Madison County; Peter H. Huck, Judge.

"Not to be officially published."

Action by the Missouri Cobalt Company against the Missouri Pacific Railroad Company and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

James F. Green, of St. Louis, and W. C. Russell, of Charleston, for appellant.

Henry Davis, of Fredericktown, for respondent.

BRUERE, C.

This is an action to recover the value of a tank car of fuel oil belonging to the plaintiff, which the Missouri, Kansas & Texas Railroad Company received of the Great American Refining Company at Jennings, Okl., to be transported by it and the Missouri Pacific Railroad Company to the plaintiff, at Fredericktown, Mo., and which was lost in transit while being in the possession of the Missouri Pacific Railroad Company. Plaintiff dismissed as to the Missouri, Kansas & Texas Railroad Company. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, from which judgment the Missouri Pacific Railroad Company prosecutes this appeal.

The petition is based on the common-law liability of the carrier as an insurer. It alleged, inter alia, that the car of fuel oil was delivered on the 5th day of July, 1920, to the Missouri, Kansas & Texas Railroad Company, at Jennings, Okl., in good condition, and that the Missouri, Kansas & Texas Railroad Company thereafter delivered said oil to the Missouri Pacific Railroad Company at Wagoner, Okl., on the 16th day of July, 1920, and that when said latter company delivered

255 S.W. 971

said car to the plaintiff at Fredericktown, Mo., on July 28, 1920, the oil was missing.

The answer of the appellant pleaded, first, a general denial; second, an admission that, as a common carrier of freight, appellant received from the Missouri, Kansas & Texas Railroad Company at Wagoner, Okl., one tank car, supposed to contain 8100.31 gallons of fuel oil, which was consigned by the Great American Refining Company from Jennings, Okl., to the plaintiff at Fredericktown, Mo.; and, third, that said oil was received for transportation under a written contract or bill of lading issued by the Missouri, Kansas & Texas Railroad Company, the initial carrier, which, among other things, provided as follows:

"No carrier or party in possession of any of the property herein described shall be liable for any loss thereof * * * caused by * * * the act or default of the shipper or owner," etc.;

—that the oil was lost by the act and default of the shipper, the Great American Refining Company, in failing to close the inner valve of the tank before loading it with oil, and in failing to properly fasten the cap on the outer valve or discharge pipe beneath the car before shipping it, and that by reason thereof said cap fell off; that, if the inner valve had been closed, the loss of the cap off the outer valve would have made no difference; that, when received by appellant at Wagoner, Okl., from all outward appearance the car was in good, safe condition, and that the appellant did not know that said inner valve was not closed; that when appellant discovered that the tank car was leaking it set the car out for inspection at Van Buren, Ark., where it was discovered that the entire contents of the car had leaked out; and that after the car was placed in defendant's possession it was at no time roughly handled.

At the close of the testimony the defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give, and now contends that error was committed in the denial of its offer. In support of its contention it is urged that the evidence shows conclusively that default of the shipper, in that the tank car was not in good condition at the time the same was received for shipment.

We think the evidence, when considered and viewed in the light most favorable to plaintiff (as we must view it in passing upon the demurrer to the evidence), tended to prove that the tank car of fuel oil was delivered in good condition to the initial carrier at Jennings, Old., on the 5th day of July, 1920.

Regarding the loading of the car, the loading inspector of the Great American Refining Company at Jennings, Okl., testified that the car in question was loaded under his supervision; that it was his custom to inspect the caps on tank ears before the cars were filled with oil, and to examine the condition of the...