National Beef Packing Co. v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 29 March 1976
• Docket Number: No. KCD,KCD
• Court: Missouri Court of Appeals
• Parties: NATIONAL BEEF PACKING COMPANY, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Respondent. 27303.

Page 521

535 S.W.2d 521

NATIONAL BEEF PACKING COMPANY, Appellant, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Respondent.

No. KCD 27303.

Missouri Court of Appeals, Kansas City District.

March 29, 1976.

George M. winger, William G. Levi, Kansas City, for appellant.

Daniel M. Dibble, Kansas City, for respondent.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

National Beef Packing Company brought this action against The Atchison, Topeka & Santa Fe Railway Company to recover the sum of $11,274.40 (plus interest) which it claimed was the value of unreturned meat hooks loaned by National for use in shipment of its products over Santa Fe routes. The claim was based upon alleged contracts of bailment between plaintiff and defendant. A jury failed to agree upon a verdict. Thereafter, the trial court sustained defendant's motion for a directed verdict and entered judgment accordingly. Plaintiff appeals.

National Beef Packing Company ('National') is a corporation engaged in commercial slaughtering and meat packing business. Its principal business during the period here involved was in Kansas City, Kansas. The Atchison, Topeka & Santa Fe Railway Company ('Santa Fe') was one of several raid carriers the services of which were used by National in shipping its products.

Shipments by National originating in Kansas City, Kansas and handled by Santa Fe were made in refrigerated trailers supplied by Santa Fe. The trailers were loaded on railroad flat cars and delivered to destination by Santa Fe and connecting carriers. Frozen animal carcasses loaded by National into the trailers were suspended from detachable hooks which hung from rails in the trailer. Some hooks were longer than others, hence 'long hooks and 'short hooks' were involved. The number of each type required for a shipment depended upon the type of carcasses involved.

When National planned a shipment via Santa Fe, a National employee would call a clerk at the Santa Fe freight station and request a trailer or trailers for a specified day and time and also request the number of meat hooks required to load the particular trailer. When Santa Fe had the necessary hooks they sent them in the trailer. If the number required was not available, they would send what they had. In numerous instances the trailer was sent with no hooks.

When the trailer arrived at National, the loading foreman would check the trailer and the number and condition of the meat hooks. If Santa Fe had furnished less than the necessary number, hooks to supply the deficiency were taken from a stock owned by National. The loading foreman told National's scaler the number of National hooks, if any, used for each load and the scaler would enter the number of such hooks on a hook bailment form which included the trailer number and the destination of the shipment.

The bailment form together with the scaler's record of the weight of the shipment went to National's billing clerk. The billing clerk prepared the bill of lading for the shipment. Whenever a hook bailment was involved, he wrote on the face of the bill of lading the number of long and short hooks furnished by National.

When the Santa Fe driver arrived at National to pick up a loaded trailer, he was given the bill of lading, the original of which he was required to sign and leave with National. Where a hook bailment was involved, he was also given two copies of the hook bailment form, the original of which he signed and left with National. The driver retained a duplicate copy of the hook bailment. (The record is silent as to what the driver did with the copy.)

The bailment contract was in the following form:

'In consideration of the delivery to bailee (Santa Fe) by bailor (National) of the following described property to be used by bailee to facilitate the shipment described in the upper right hand corner hereof:

'_ _ Long Hooks at 60cents each $_ _

'_ _ Short Hooks at 40cents each $_ _

'* * *

'bailee agrees to return same to bailor, in as good condition as when received, ordinary wear and tear excepted, by delivery thereof to bailor's origin plant within 10 days from date thereof, and to obtain bailor's receipt for same on the duplicate of this form. It is further agreed that should bailee fail to so return the said property, bailor is entitled to bill bailee for value of the hooks and racks not so delivered and bailee agrees to remit without delay.'

This litigation involves hooks supplied by National in this manner for Santa Fe shipments from December, 1967, to March, 1969. During that period, Santa Fe would accumulate hooks at its freight station and, based upon their records of the number they had been short in trailers furnished National, would from time to time send drums and barrels containing meat hooks to National in numbers ranging from some 200 to 3000 hooks.

National's billing clerk kept a record of the hooks so furnished by National and those so returned by Santa Fe. According to his record, for the period involved, Santa Fe was short on returns by 18,737 long hooks and 13 short hooks, of a total value of $11,247.40.

Sometime in March, 1969, Santa Fe drivers were directed to stop signing the hook bailment form on National shipments. National continued to prepare the bailment form which was used to record the hooks furnished on Santa Fe shipments. The hooks allegedly not returned on that system were part of National's original demand upon Santa Fe, but at trial, these hooks were eliminated from the claim.

The Santa Fe general freight agent in charge of its Kansas City, Kansas freight station testified that he consulted with National's general manager following receipt in January, 1970 of a demand upon Santa Fe from National for settlement of the hook account. According to the Santa Fe agent, Santa Fe was 'basically even' with National on hooks at that time. According to him, he had been unaware that Santa Fe drivers had been signing the National bailment form. When he learned of the practice in March, 1969, he told the drivers' supervisor that he 'did not see how they could sign for something they had no idea what they were signing for.' Apparently this observation was sufficient to put an end to their signing the bailment forms.

Santa Fe had a duly published tariff covering the return of meat hooks. Its basic provisions were:

'MEAT HOOKS AND RACKS:

'Rates named in this tariff on: . . .

'Meats . . . include transportation of and return to origin point named in this tariff without additional charge, Meat Hooks and/or Racks, used in transportation of the commodities enumerated above, in refrigerator trailers. Shipper must certify on the bill of lading and shipping order the number and size of Meat Hooks and/or Racks used for loaded movement.

"Bill of lading and/or shipping order (See Note 2) must be issued for the return movement of meat hooks and/or racks. Such document must show reference to the loaded movement of meat hooks and/or racks from the origin point named in this tariff, and must be tendered at the time the empty trailer is returned to the railroad. The return movement without additional charge will apply only via the carrier or carriers which transported the loaded movement and will be in the type of service most convenient to the carrier. The number and size of Meat Hooks and/or Racks on the return movement and the following certification must be shown on the bill of lading and/or shipping order covering the return movement.'

'NOTE 2.--Bill of lading and/or shipping order must show the origin line of loaded movement as consignee.

'CERTIFICATION

'This is to certify that _ _ long Meat Hooks and _ _ short Meat Hooks or _ _ Meat Racks (Shippers load and count) as described herein moved inbound via _ _ from _ _, (Name of Carriers) (Shipper) from _ _ on Waybill No _ _ dated (point of origin) _ _ in T...