Morrow v. Missouri Pacific Railway Co.

• Decision Date: 06 December 1909
• Citation: 123 S.W. 1034,140 Mo.App. 200
• Parties: S. O. MORROW et al., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

123 S.W. 1034

140 Mo.App. 200

S. O. MORROW et al., Respondents, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

December 6, 1909

[Copyrighted Material Omitted]

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

REVERSED AND REMANDED.

STATEMENT.--The plaintiffs' cause of action in this case was for damages for the delay in the shipment of certain mill rolls. The evidence tended to show the following state of facts:

That at and prior to the institution of this suit, the plaintiffs were partners owning and operating a flour mill on Spring river near Carthage, Missouri, and the defendant operated a line of railroad and was a common carrier of freight and passengers between Carthage, Missouri, and Leavenworth Kansas, and elsewhere. On about the 28th day of September 1907, the mill rolls being a part of the machinery of the plaintiffs' mill and necessary for the operation, became worn and defective and had to be repaired, and it was necessary to send the same for that purpose to the Great Western Manufacturing Company, of Leavenworth, Kansas, the plaintiffs having made an agreement with that company to repair said rolls upon receipt of the same and return them promptly to the plaintiffs. On the 28th day of September, 1907, the rolls were taken to the station of the defendant company at Carthage, Missouri, and delivered to it for shipment to Leavenworth, Kansas. Plaintiffs notified the shipping clerk who took charge of the freight at the time of shipment and who issued the bill of lading of the nature of the shipment, the purpose for which the rolls were being shipped, the necessity for prompt shipment of the same, and that while the rolls were away from the mill it would have to stand idle. The defendant, with such knowledge, agreed to transport the rolls to Leavenworth, Kansas, and did receive the same for the purpose of transporting them. The defendant's shipping clerk, at the time he received the freight for shipment, gave the plaintiffs a bill of lading on which was endorsed,--"Mill rolls, rush," in pencil memorandum.

The bill of lading contained a condition that all claims for damages must be reported by the consignee in writing within thirty-six hours after he was notified of the arrival of the freight, and that there was no liability unless such notice was given. The goods were transported and delivered to the consignee and no notice for claim for any damages was given the defendant.

Another condition of the bill of lading was "that in the event of loss of property under the provisions of this agreement, the value or cost of the same at the point of shipment shall govern the settlement."

The mill rolls were sent to be recorrugated. The bill of lading was signed by the defendant's shipping clerk. The rolls were lost or delayed in the course of the fulfillment of the contract of shipment, and did not reach their destination until October 16, 1907, and were some eleven days longer in transportation than they should have been in the ordinary course of business. The mill, during this time, remained idle awaiting the return of the mill rolls.

At the trial, the plaintiffs introduced evidence tending to show the number of hands they had employed and the amount paid them during the time that the mill was idle. One of the plaintiffs, S. O. Morrow, testified as to the profits they lost by reason of the unnecessary delay in transportation in substance as follows: He stated that he had been connected with his present mill for twenty-two years; that it was a roller flour mill--both water and steam; that his trade was principally in the south, but that he also had a fair local business in Carthage; that they made, besides flour, chops, ground meal and bran. That the mill had been shut down prior to September 28th since July; that there was nothing to prevent the mill from running except the rolls and the mill was ready to run when the rolls were sent away for repairs; that they had no other rolls and couldn't procure any sufficient to run the mill. He then gave the names of the different employees and the amount he had to pay them per month while the mill was idle, and stated that he had no work for them to do which could not have been done while the mill was running. He stated that they had always had a market for their product; that they had wheat and material in the mill on hand to grind and operate. "Q. Now, Mr. Morrow, you may state, keeping inside of any doubt, what would have been the reasonable profits per day in the operation of the mill during the eleven days' time above the usual period to transport the rolls, taking into consideration the capacity of the mill, what you had on hand and the market, under the conditions at that particular time? A. Under the conditions at that particular time, $ 75.00 per day, I would have expected to have made more than that." "Court. You mean that amount made above all expenses if you had the rolls? A. Yes, sir."

On cross-examination, the witness testified in substance as follows: The mill was not operated from July until the rolls were returned in October. During that time, I turned out no flour, and had no men on the road; can't say whether I had orders out at that time. Would have started the mill as soon as the rolls returned. "Q. How can you tell what the profits would be on wheat sold unless you knew what orders you had for wheat and what price you make on flour? A. I didn't answer that kind of a question. He asked me what the profit of the mill would have been per day under the conditions at that time if the rolls had been there. I would had to have had men on the road to take orders in order to make a profit." I couldn't entirely depend on the local market at Carthage. We had men waiting to start on the road. Could not have made a profit without having men on the road and taking orders, nor run at a profit and supply Carthage alone, but didn't get all our orders from salesmen. We had a man ready to start at the time the rolls went away, but never tried his capacity; he had been in the flour business for thirty years. I can't give you the price of wheat. The price of wheat would regulate the profit on flour. Wheat was at a high point, a dollar and one cent, but was not that at all times; during the time the rolls were away there was an advance in the market on wheat and flour; when we got the rolls back, the market was on the decline, and we sold a large quantity of wheat at twelve and fifteen cents a bushel less. We could have ground at the mill if we had had the rolls. We didn't sell the wheat because we wanted to mill it. The sales of flour would depend not only on the value of wheat, but on the orders for flour and the market at the time.

We could have operated the mill at a profit during that period if we had had enough orders for future shipment to keep us running. The profit depends upon the market. When I sell flour, I know how much I am going to make, but I can't tell what the profit will be until I do sell it. I don't know what the profit for the year will be until the end of the year. The profit would depend upon the character of the flour and the regularity in running the mill. All these things would enter into the final result of a year's work, in determining whether the mill was run at a profit. Our average capacity was two hundred barrels a day. We had more wheat than we could have ground into flour in that eleven days. We carried insurance and paid taxes and borrowed money to buy wheat.

Other testimony was offered by plaintiffs tending to corroborate the statements of Mr. Morrow.

Judgment was rendered for the plaintiffs for three hundred dollars. The defendant made timely motions for a new trial and in arrest, and these being overruled, perfected his appeal as the law requires.

Reversed and remanded.

Martin L. Clardy and Edw. J. White for appellant.

(1) The plaintiffs' evidence failing to establish a contract to reimburse them for loss of profits, in case of delay, or to impart notice to defendant that their mill could be operated at a profit, and no loss of profits being shown, by any legitimate evidence, since such profits amounted to mere speculation, from the facts shown, and no legal basis for the liability for loss of profits was established, the defendant's demurrer should have been sustained. Hadley v. Baxendale, 9 Exch. 341; Howard v Stillwell Mfg. Co., 139 U.S. 199, 35 Law Ed. 147; Burdall v. Johnson, 122 Mo.App. 119; Connoble v Clark, 38 Mo.App. 482; Taylor v. McGuire, 12 Mo. 313; Galloway Mining Co. v. Clark, 32 Mo.App. 309; Rogan v. Railroad, 51 Mo.App. 665; Prior v. Railroad Co., 85 Mo.App. 367; York v. Everton, 121 Mo.App. 641; Railroad v. Planters' Gin, etc., Co., 113 S.W. 355; Harvey v. Railroad, 124 Mass. 421, 26 Am. St. 673; Goodin v. Railroad, 125 Ga. 630, 54 S.E. 720, 6 L.R.A. (N. S.) 1054; Holloway v. Shoe Co., 151 F. 216, 80 C. C. A. 568, 10 L.R.A. (N. S.) 704; Nichols v. Rash, 138 Ala. 372, 35 So. 409; McNeil v. Steele Co., 207 Pa. 493, 56 A. 1067; Toolworks Co. v. Welisch, 128 F. 693, 63 C. C. A. 245; Wilson v. Russler, 91 Mo.App. 275; Paquin v. Railroad, 90 Mo.App. 118. (2) The evidence only showed that notice was given of the fact that the shipment contained mill rolls, without disclosing the material fact that a loss of profits would result from the delay in the shipment, and this was not such notice from which an implied promise could be held, to reimburse the plaintiff's for a loss of profits, when it was not shown that it had notice that such loss would result from the any delay in the shipment. Gray v. Railroad, 54 Mo.App. 666; Swift River Co. v. Railroad, 169 Mass. 326, 47 N.E. 1015; 8 Am. and Eng. R. Cas. (N. S.) 513; Bradley v. Railroad, 94 Wis. 44, 68 N.W. 410. (3) The...