National Bank of Commerce v. Southern Ry. Co.

• Decision Date: 11 January 1909
• Citation: 135 Mo. App. 74,115 S.W. 517
• Parties: NATIONAL BANK OF COMMERCE OF KANSAS CITY v. SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

115 S.W. 517

135 Mo. App. 74

NATIONAL BANK OF COMMERCE OF KANSAS CITY v. SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

Rehearing Denied February 1, 1909.

1. TROVER AND CONVERSION (§ 1)—NATURE OF "CONVERSION."

"Conversion" is the unlawful turning or applying the personal goods of another to the use of the taker or of some other person than the owner, or the unlawful destroying or altering their nature.

2. CARRIERS (§ 93)—MISDELIVERY—FAILURE TO COMPLY WITH TERMS OF SHIPMENT.

The shipper of goods has the right to designate the consignee, and the carrier is bound to obey the shipper's directions or comply with the terms of the shipment as to the delivery, and, if it disobeys, it is liable for a conversion; and hence, where grain was shipped to a consignee at a certain point and the bill of lading required notice to the consignee when the goods arrived at destination, and the carrier did not notify the consignee, but on the order of a third person, the purchaser of the grain, removed the grain to another point, the carrier's failure to notify the consignee and its shipment to the other point was a violation of the contract of shipment and a conversion of the grain.

3. CARRIERS (§ 80)—MISDELIVERY—FAILURE OF CARRIER TO COMPLY WITH TERMS OF SHIPMENT.

That the point to which grain was removed by the carrier was within the switch limits of the place of delivery would not render it the same point so as not to make the removal a change of destination; the places being 14 miles apart, and distinct from each other.

4. APPEAL AND ERROR (§ 882)—REVIEW—ERROR INVITED BY COMPLAINING PARTY.

Where a party invited the error of giving conflicting instructions, it could not complain thereof.

5. APPEAL AND ERROR (§ 1064)—REVIEW— HARMLESS ERROR—INSTRUCTIONS.

In an action against a railroad company for conversion in removing goods from the place of delivery to another point, charges that, if defendant's tracks at the place to which the goods were removed were within the switch limits of the place of delivery, the removal of the goods there did not constitute conversion, and that, if the place of delivery and the place to which the goods were removed were separate cities about 12 miles apart with distinct stations, then the removal of the grain constituted conversion, though conflicting, it being shown that, though the two cities were miles apart, they were within the same switch limits, were not prejudicial; there being no dispute as to the facts.

6. CARRIERS (§ 85)—MISDELIVERY—ACTION— INSTRUCTIONS.

In an action against a railroad company for conversion in failing to comply with the contract of shipment, where the contract of shipment required notice to be given to the consignee of the arrival of the goods, a charge that defendant was not required to give such notice was properly refused.

7. CARRIERS (§ 85)—CARRIAGE OF GOODS — CONTRACT OF SHIPMENT — NOTICE TO CONSIGNEE —SUFFICIENCY.

Where bills of lading required the carrier to notify the consignee of the arrival of the goods, it was bound to notify the consignee at its known place of business, and it was not sufficient to mail the notice to the place of delivery where the consignee was known not to be doing business, and where the notice would not be received.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by the National Bank of Commerce of Kansas City, Mo., against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John G. Schaich and C. C. Madison, for appellant. Elijan Robinson and Harris Robinson, for respondent.

BROADDUS, P. J.

This is a suit for damages for conversion. The Young-Flesch Grain Company of St. Louis sold to the Wayland-Wright Grain Company of Kansas City two cars of corn, to be shipped to Birmingham, Ala. The cars were delivered by the first-named company to the Mobile & Ohio Railroad Company at St. Louis on February 28, 1903, for transportation. Shipper's order bills of lading were delivered by said Mobile & Ohio Railroad Company to the Young-Flesch Company, on which was the notation: "Notify Wayland-Wright Grain Company." Upon the receipt of the bills of lading, the Young-Flesch Grain Company indorsed and delivered them to the Wayland-Wright Grain Company. The latter had contracted to sell the corn to J. J. Stevenson of Birmingham, and, upon receipt of the bills of lading, the Wayland-Wright Company drew a draft on Stevenson for the purchase price of the corn, and, having indorsed the bills of lading, attached the same to the draft, and delivered both to the plaintiff, and received credit for the amount. Upon the arrival of the corn at Columbus, Miss., the Mobile & Ohio Railroad, not having a line of railroad to Birmingham, turned the corn over to the defendant for transportation to Birmingham, viz., one car on March 7 and the other on March 10, 1903. One of the cars of corn arrived at Birmingham on the 11th day of March and the other on the 16th day of March, 1903. On the 26th...