Morrison Grain Company v. The Missouri Pacific Railway Company
| Decision Date | 06 July 1914 |
| Citation | 170 S.W. 404,182 Mo.App. 339 |
| Parties | MORRISON GRAIN COMPANY, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Apellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John I. Williamson, Special Judge.
AFFIRMED CONDITIONALLY.
Martin L. Clardy and Edward J. White for appellant.
(1) The court erred in overruling the demurrer asked at the close of the plaintiff's case. Bank of Monett v. Stone & Prickett, 93 Mo.App. 292; McCord v. Railroad, 21 Mo.App. 95; Cobble v. McDaniel, 33 Mo. 363; Darrett v. Donnelly, 38 Mo. 492; Adams v Trigg, 37 Mo. 141; Behen v. Transit Co., 186 Mo. 439. (2) The plaintiff's petition combined a cause of action ex delicto with one ex contractu, and the same cannot be joined under the code. Pruitt v. Warren, 71 Mo.App. 84; Sumner v. Rogers, 90 Mo. 324; O'Reilly v. Disk, 48 Mo.App. 62; Jordan v Transit Co., 202 Mo. 418; Barnes v. Railroad, 119 Mo.App. 303. (3) The instruction to the jury to calculate interest on the amount of the plaintiff's recovery was clearly erroneous under the decisions of the courts of this State. Gerst v. St. Louis, 185 Mo. 191; Meyer v Insurance Co., 95 Mo.App. 721; Feller v McKillip, 109 Mo.App. 61; Horner v. Railroad, 70 Mo.App. 285; Commercial Co. v. Bank, 74 Mo.App. 633; Roberts v. Hardy, 89 Mo.App. 86.
Sebree, Conrad & Wendorff for respondent.
(1) Only one count of plaintiff's petition was submitted to the jury. Jordan v. Transit Co., 202 Mo. 418; White v. Railroad, 202 Mo. 539. (2) At the time of the fire, the defendant had accepted the car of corn as carrier. Gregory v. Railroad, 46 Mo.App. 574; Reading v. Railroad, 165 Mo.App. 123. (3) There may be an acceptance for transportation before a bill of lading is made out. Mason v. Railroad, 25 Mo.App. 473; Hutchinson on Carriers (3 Ed.), Sec. 127; Railroad v. Hull, 64 Tex. 615; Moss v. Railroad, 153 Mo.App. 602; Hoover v. Railroad, 113 Mo.App. 688; Holland v. Railroad, 139 Mo.App. 716; Milne v. Railroad, 155 Mo.App. 465, dictum. (4) The question of acceptance of the corn by defendant as carrier was a jury question, and was properly submitted. Reading v. Railroad, 165 Mo.App. 123; Milne v. Railroad, 155 Mo.App. 465; Gregory v. Railroad, 46 Mo.App. 574. (5) Plaintiff was entitled to interest. Padley v. Cattery, 64 Mo.App. 629; Gregory v. Packet Co., 64 Mo. 47; Goodman v. Railroad, 71 Mo.App. 460; Warehouse Co. v. Railroad, 124 Mo.App. 545; Lachner Bros. v. Express Co., 72 Mo.App. 13.
Originally the petition in this case was in two counts. In both the plaintiff sought to recover damages for the loss of a carload 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, l. c. 426; White v. St. Louis & Meramac River R. Co., 202 Mo. 539, l. c. 561.]
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 carload 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 books 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 delivered to defendant and accepted by it for transportation was submitted to the jury and the latter by its verdict found that it had. So that unless we can say, as matter of law, that it had not, or that notwithstanding such facts, the defendant was not liable as a carrier because the bill of lading was not executed, the point under consideration will have to be decided adversely to defendant.
In 1 Hutchinson on Carriers (3 Ed.), Sec. 127, it is said it has often been held that no entry upon a waybill or written memorandum is necessary to complete a delivery to the carrier. All that is necessary is a deposit of the goods with the carrier for the purpose of transportation and if they be accepted by him to be sent forward in the ordinary course of business whether accompanied by the owner or not, the full responsibility of the carrier at once begins. And the same authority at section 119, says the responsibility for the safety of the goods shifts from the owner to the carrier as soon as delivery for the purpose of shipment is made and the carrier has accepted the goods for that purpose. In Mason v. Mo. P. Ry. Co., 25 Mo.App. 473 it is held that where delivery of freight is made to the carrier for early transportation, the latter, upon accepting it for such purpose, becomes liable as such carrier, the deposit being a mere accessory to the carriage, and the carrier's liability is not postponed to the time when the goods shall be actually put in motion toward their destination.
In East Line, etc. R. Co. v. Hall, 64 Tex. 615, it is held that, notwithstanding a statute providing that transportation of goods by a common carrier shall be considered as having commenced from the time the bill of lading is signed and the common-law liability of the carrier shall attach from that time, the liability of the carrier begins from the time the goods are delivered to and accepted by the carrier. The responsibility imposed by the common law upon a carrier makes it liable for the safety of goods delivered for shipment and accepted by it for that purpose. [Tate v. Yazoo, etc. R. Co., 84 Am. St. Rep. 649.]
It is held in Milne v. Chicago, etc. R. Co., 155 Mo.App 465, 135 S.W. 85, that a common carrier may become responsible for property entrusted to its care for transportation even before a bill of lading is signed, and that the carrier's duty and obligation always attach as soon as the delivery of goods for transportation is completed so as to place upon it the exclusive duty of seeing after their safety. In fact, the bill of lading is a receipt for the...
To continue reading
Request your trial