People's State Savings Bank v. Missouri, K. & T. Ry. Co.

• Decision Date: 30 June 1911
• Citation: 158 Mo. App. 519,138 S.W. 915
• Parties: PEOPLE'S STATE SAVINGS BANK v. MISSOURI, K. & T. RY. CO. et al.
• Court: Missouri Court of Appeals

138 S.W. 915

158 Mo. A. 519

PEOPLE'S STATE SAVINGS BANK v. MISSOURI, K. & T. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

Rehearing Denied July 15, 1911.

1. TROVER AND CONVERSION (§ 1) — WHAT CONSTITUTES "CONVERSION."

A "conversion" is shown when one person unlawfully interferes with the property of another, and assumes and exercises dominion over it in disregard, and to the exclusion, of the owner's rights therein.

2. CARRIERS (§ 219) — LIVE STOCK — ALTERATION OF BILL OF LADING — CONVERSION.

Plaintiff bank furnished N. money with which to buy horses in Kansas, to be transported and sold in South Carolina, on security of a bill of lading issued by defendant M. company, reciting that the same was consigned by M. to himself, or "shipper's order," at destination. This bill was negotiable and was immediately transferred to plaintiff, and the horses transported to the end of the M. company's line, where they were tendered to defendant L. company, the connecting carrier, which refused to accept them under the "shipper's order" bill, whereupon the horses were unloaded and negotiations had between the L. company's agent and the agent of the M. company and plaintiff's president for a release of the order clause; but plaintiff having refused negotiations were continued with the caretaker in charge of the horses, who surrendered the live stock contract in his possession, and contracted in the name of N. for the further transportation of the horses to destination, without the shipper's order clause, naming a bank at destination as consignee. On arrival the horses were delivered to N., who sold some of them and refused the balance, which were sold by the railroad company, and the draft sent by plaintiff to the bank at destination, with the bill of lading for collection remaining unpaid. Held that, since the caretaker had no authority to change the contract, and both railroad companies had notice of that fact, their act in so doing constituted a joint conversion of the horses, rendering them liable as insurers for the subsequent loss.

3. BAILMENT (§ 26) — CONVERSION — ACTION — CONDITION PRECEDENT — DEMAND.

Where a conversion is operated through an abuse of bailment, contrary to the terms of a contract therefor, no demand is necessary prior to suit.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by the People's State Savings Bank against the Missouri, Kansas & Texas Railway Company and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Ziegler & Dana and J. R. Van Slyke, for appellant. Stewart, Bryan, Christie & Williams, H. R. Small, Joseph M. Bryson, and Lee W. Hagerman, for respondents.

NORTONI, J.

This is an action in the nature of trover as for conversion. At the conclusion of the evidence for plaintiff, the court peremptorily directed a verdict for both defendants, and plaintiff prosecutes the appeal.

Defendant Missouri, Kansas & Texas Railway Company, incorporated, is a common carrier of freight, and as such owns and operates a line of railroad from Coffeyville, in the state of Kansas, to St. Louis, Mo., and defendant Louisville & Nashville Railroad Company, incorporated, is a common carrier of like character, which owns and operates a line of railroad from East St. Louis, Ill., to Nashville, Tenn., and other points south and east thereof. Plaintiff, People's State Savings Bank, is a corporation engaged in the banking business at Coffeyville, in the state of Kansas, and as such is the assignee for value of a consignment of nine horses, alleged to have been converted by defendants, which consignment was made by John McNulty, at Coffeyville, to himself, or shipper's order, at Batesburg, S. C., and was immediately transferred to plaintiff bank by an assignment of the bill of lading therefor. The suit proceeds against both defendants as for the joint tort of converting the shipment of horses at their point of connection, East St. Louis, Ill., through the one delivering the shipment to the other, contrary to instructions, and the other actually changing the shipping instructions on the consignment.

It appears John McNulty was engaged in the business of buying horses at Coffeyville, Kan., and shipping them to Batesburg, S. C., over the Missouri, Kansas & Texas Railway to St. Louis, and through its agency across the Mississippi river to the point of connection with the Louisville & Nashville Railroad; thence over that and other lines to Batesburg. Plaintiff bank furnished McNulty with the means to purchase the load of horses alleged to have been converted by defendants, and after McNulty delivered the horses to the Missouri, Kansas & Texas Railway at Coffeyville for shipment, and received from it a negotiable bill of lading therefor, reciting that the horses were consigned to John McNulty, or to his order, at Batesburg, S. C., he assigned and delivered this bill of lading to plaintiff, People's State Savings Bank, for $1,500. Plaintiff immediately made a draft on the consignee, John McNulty, at Batesburg, S. C., through the Citizens' Bank of that place, and forwarded it there for collection, with instructions upon the payment of the draft by McNulty to deliver him the bill of lading for the nine head of horses. At the time defendant Missouri, Kansas & Texas Railway Company issued this negotiable bill of lading to McNulty, consignee, or his order, it also issued a stock shipment contract of some kind to him, which authorized an attendant to travel with the horses to the end of its line at St. Louis, Mo., and for a return pass to Coffeyville, Kan. This stock shipment contract was delivered by McNulty to one Coverdale, who accompanied the shipment for the purpose of caring for the horses, but the stock contract itself, which Coverdale bore, was not introduced in evidence, and we are unadvised of its contents, except as to what may be gleaned pertaining to the same from numerous statements of the witnesses. Enough appears as to this contract, however, to disclose that it, too, was issued by the Missouri, Kansas & Texas Railway Company to McNulty, or order, and marked, "notify Citizens' Bank, Batesburg, South Carolina." The negotiable bill of lading issued by the Missouri, Kansas & Texas Railway Company to McNulty, which is in the usual form of bills of lading for goods, wares, and merchandise, recites the shipment of nine horses by McNulty to himself, shipper's order, notify at Batesburg, S. C., and evinces a contract on the part of the Missouri, Kansas & Texas Railway to carry the shipment to the end of its line, St. Louis, Mo., and even beyond and across the Mississippi river at that place, for delivery to the Louisville & Nashville Railroad Company, with shipping directions to the effect that the consignment was to be carried through by the Louisville & Nashville Railroad and its connecting carriers to McNulty, or his order, at Batesburg. As we understand the evidence, the stock contract issued to McNulty, for the use of Coverdale in accompanying the shipment, is to the same effect, substantially, in so far as important here, but of it the plaintiff had no knowledge whatever. There is nothing in either of these contracts, however, imposing a duty on the Missouri, Kansas & Texas Railway Company to do more than transport the shipment to East St. Louis, Ill., and make delivery thereof there under the shipping directions annexed to the Louisville & Nashville Railroad Company.

It appears that the Missouri, Kansas & Texas Railway, in performing its contract, transported the horses to the end of its line, St. Louis, Mo., and across the Mississippi river by a connecting carrier, where it unloaded them at the National Stock Yards, East St. Louis, Ill., and through the agency of the stock yards company tendered the shipment to the Louisville & Nashville Railway Company, in accordance with the shipping directions, on Friday morning. The Louisville & Nashville Railroad Company refused to accept the consignment, however, for the reason it was made to John McNulty, shipper's order, notify, as it has a standing rule against such shipments of live stock. The Louisville & Nashville Railroad Company notified the Missouri, Kansas & Texas Railway Company to this effect, and the horses were therefore retained by the latter company at the National Stock Yards in East St. Louis during Friday, Saturday, and Sunday, while negotiations were being had to the end of effecting a delivery to the Louisville & Nashville Railroad Company. It appears the Missouri, Kansas & Texas Railway Company endeavored to communicate by wire with John McNulty at Coffeyville, Kan., that the Louisville & Nashville Railroad Company would not accept the shipment so billed — shipper's order, notify — but was unable to reach him, as McNulty had...