Morrison Grain Co. v. Missouri Pac. Ry. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Trimble
• Citation: Morrison Grain Co. v. Missouri Pac. Ry. Co., 170 S.W. 404, 182 Mo. App. 339 (Mo. App. 1914)
• Decision Date: 06 July 1914
• Docket Number: No. 11203.<SMALL><SUP>†</SUP></SMALL>,11203.<SMALL><SUP>†</SUP></SMALL&gt
• Parties: MORRISON GRAIN CO. v. MISSOURI PAC. RY. CO.

170 S.W. 404

182 Mo. A. 339

MORRISON GRAIN CO. v. MISSOURI PAC. RY. CO.

No. 11203.^†

Kansas City Court of Appeals. Missouri.

July 6, 1914.

Motion to Transfer to Supreme Court Denied October 5, 1914.

1. APPEAL AND ERROR (§ 843) — MATTERS CONSIDERED — PLEADINGS.

The question whether two counts of a petition were contradictory was not material on appeal, where the case was submitted on one count only.

2. CARRIERS (§ 51) — CARRIAGE OF GOODS — "BILL OF LADING."

A "bill of lading" is a receipt for goods and a contract to carry.

3. CARRIERS (§ 113) — CARRIAGE OF GOODS — LIABILITY FOR LOSS — DELIVERY TO CARRIER.

Plaintiff, having an elevator located upon a switch extending from defendant's tracks, ordered a car placed at the elevator, loaded it

with corn, and notified defendant's agent that it was loaded and that he would write out a bill of lading in the morning, whereupon defendant, according to its custom, moved the car to a point convenient for making up a train and left it near its station, where it was destroyed by fire during the night. The jury found that it had been delivered to defendant and accepted for transportation. Held, that defendant's liability began with the delivery and acceptance for shipment, and that it was liable for the loss, and that the fact that it was an interstate shipment did not affect the case, since the Carmack Amendment to the Hepburn Act (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]), while requiring the carrier to issue a bill of lading, nowhere says that the carrier's liability shall not attach until such bill of lading has been issued.

4. CARRIERS (§ 134) — ACTION FOR LOSS — QUESTION FOR JURY — DELIVERY TO CARRIER.

In a shipper's action against a carrier to recover for the loss of a car load of corn, burned while standing on a switch before any bill of lading had been issued, evidence held sufficient to sustain a finding of delivery to and acceptance by the carrier for transport.

5. CARRIERS (§ 151) — CARRIAGE OF GOODS — RELEASE OF LIABILITY.

Under the federal regulations of interstate shipments, a carrier cannot by mere stipulation in an independent contract, such as a lease of an elevator, having no connection with a contract for the shipment of goods, relieve itself of its liability as a common carrier for the loss of goods, but may only do so in the mode pointed out in such regulations, so that all shippers will be treated alike.

6. TRIAL (§ 296) — REQUESTED INSTRUCTIONS — ERRORS — CURE BY OTHER INSTRUCTIONS.

In an action against a carrier for damages for the loss of a car of corn, error, if any, in an instruction as to what facts were necessary to constitute a delivery to, and acceptance by, defendant for carriage was harmless, where the defect was fully supplied by defendant's instructions.

7. CARRIERS (§ 135) — CARRIAGE OF GOODS — ACTION FOR LOSS — INTEREST.

In a shipper's action for damages from the loss of a car load of corn, in which the only allegation of damages was limited to the precise value of the corn, interest on the amount of the recovery could not be allowed.

Appeal from Circuit Court, Jackson County; John I. Williamson, Special Judge.

Action by the Morrison Grain Company against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that a remittitur be made within ten days; otherwise to be reversed and remanded.

Martin L. Clardy, of St. Louis, and Edw. J. White, of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

TRIMBLE, J.

Originally the petition in this case was in two counts. In both the plaintiff sought to recover damages for the loss of a car load of kaffir corn. The first count alleged a delivery of the corn to defendant as a common carrier for transportation, a failure to deliver same, and its loss to plaintiff. The second alleged that after defendant had placed a car in front of plaintiff's elevator, and the latter had loaded it with kaffir corn for transportation by defendant, and had left it within the 100-foot zone of the elevator covered by plaintiff's insurance, defendant wrongfully moved it that night beyond said 100-foot zone and exposed the car to loss by fire without insurance, and the car was on that night destroyed by fire, to plaintiff's damage in the sum of $577.50.

At the trial plaintiff dismissed the second count because of failure of proof. Therefore whether the two counts were contradictory of each other, and made the petition a "murderer of itself," is not material or of consequence now, since the case was submitted upon the first count only. Jordan v. St. Louis Transit Co., 202 Mo. 418, loc. cit. 426, 101 S. W. 11; White v. St. Louis & Meramac River R. Co., 202 Mo. 539, loc. cit. 561, 101 S. W. 14.

The question presented by the first count is: Was there a delivery of the car of corn to, and an acceptance thereof by, defendant sufficient to render the latter liable?

The evidence showed that plaintiff's elevator was located upon a switch extending from defendant's tracks; that this switch was used by defendant in transporting cars to and from said elevator in the business of hauling grain to the elevator or in taking it away from there. Plaintiff, desiring to ship a car load of kaffir corn, ordered defendant's station agent, at a station a few hundred feet from the elevator, to place a car at the elevator to be loaded, giving the agent the name of the consignee and destination of the corn, all of which, together with the number of the car, the agent placed on his book of orders. The car was, by defendant, set at the elevator and loaded by plaintiff with 66,000 pounds of kaffir corn. The loading was finished about dusk, and plaintiff notified the station agent that the car was loaded and that he would write out the bill of lading in the morning. The car was then standing at the elevator where it had been loaded.

It seems that if a car was in process of being loaded, and it became necessary for defendant's trainmen to go upon the switch to get other cars for transportation, they would switch the car being loaded out of the way for the time being, and then put it back at the loading point in front of the elevator. But, if defendant was notified that the car was loaded, this meant that the car was so far ready for transportation that defendant could take possession of it, move it from the elevator, and not return it thereto without regard to whether the bill of lading was written or not. The car would be moved about in the work of getting cars for shipment, and would be treated as a car in the possession of the railroad for shipment the same as one upon which the bill of lading had been executed, but of course no car would actually start finally on its journey away from the station until the bill of lading had been signed.

The station agent having been notified that the car was loaded, and knowing that the bill of lading would be executed the next morning, told defendant's switching crew, who were engaged in arranging and marshaling the cars for shipment, that they could move the car of corn from the elevator and not replace it, and the switch crew did so, putting the car in a location convenient for taking it out on the road with other cars at that station when the train, which would take them, was ready to start on its journey. This location, as a matter of fact, was a few hundred feet nearer the destination of the corn than was the loading point of the elevator. And, in moving the car from the loading point to the place where it was left for the night, the train crew were merely doing that portion of the work necessary to be done to the car before the start could be made. The point where the car was left was close to or adjoining the depot, and during the night a fire destroyed the car of corn. It is claimed there is no evidence as to where the fire came from nor how it originated. But the record shows that the depot burned and the fire was communicated from thence to the car of corn. However, under the view we take of the case, the origin of the fire is not material.

As the bill of lading was not executed at the time of the fire, was the corn in the possession of defendant for transportation, so as to render it liable as a common carrier? The question whether the car had been...