Puritan Pharmaceutical Co. v. Pennsylvania R. Co.

• Citation: 77 S.W.2d 508,230 Mo.App. 848
• Parties: PURITAN PHARMACEUTICAL COMPANY, A CORPORATION, RESPONDENT, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, APPELLANT
• Decision Date: 31 December 1934
• Court: Court of Appeal of Missouri (US)

77 S.W.2d 508

230 Mo.App. 848

PURITAN PHARMACEUTICAL COMPANY, A CORPORATION, RESPONDENT, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

December 31, 1934

Appeal from Circuit Court of the City of St. Louis.--Hon. Claude O Pearcy, Judge.

Judgment affirmed.

Gus O Nations for respondent.

(1) In falsely reporting to the prohibition authorities that plaintiff's toilet preparations were alcohol the carrier was guilty of conniving at the seizure of the merchandise. 2 Words and Phrases (First Series), pp. 1260, 1435; National Pro. Act, U.S.C. A., Title 27, secs. 4, 11, 40, 61. (2) The seizure of toilet preparations by a prohibition agent without judicial process of any kind is not a seizure by authority of law, and does not afford a common carrier any defense to a suit for the loss of goods. Nickey v. St. L. I. M. & S. Ry. Co., 35 Mo.App. 79; Fehrenbach Wine & Liquor Co v. A. T. & S. F. Ry. Co., 167 S.W. 632, 182 Mo.App. 1; National Prohibition Act, Title 27, U.S.C. A., secs. 4, 11, 40, 61; Dumbra v. U.S. 268 U.S. 435, 45 S.Ct. 546; Raine v. U.S. 299 F. 407; Daeufer-Lieberman Brew. Co. v. U.S. 8 F.2d 1; Leonard v. U.S. 6 F.2d 353; Carroll et al. v. U.S. 267 U.S. 132, 45 S.Ct. 280; Park v. U.S. 294 F. 776; Pales v. Paoli, 5 F.2d 280; Danciger v. A. T. & S. F. Ry. Co., 179 S.W. 800, 212 S.W. 5; Hutchinson on Carriers (3 Ed.), 325; Heymann v. Southern Ry. Co., 203 U.S. 270, 27 S.Ct. 104. (3) The undisputed evidence showed defendant had no valid defense to the action, and since there was no issue of fact in the case the trial court properly gave a peremptory instruction for the plaintiff. Nickey v. St. L. I. M. & S. Ry. Co., 35 Mo.App. 79; Fehrenbach Wine & Liquor Co. v. A. T. & S. F. Ry. Co., 167 S.W. 632, 182 Mo.App. 1; National Prohibition Act, Title 27, U.S.C. A., secs. 4, 11, 40, 61; Sturdivant Bank v. Houck, 215 S.W. 758; St. Charles Savings Bank v. Orthwein Inv. Co., 140 S.W. 921, 160 Mo.App. 369; Crawford v. Stayton, 110 S.W. 665, 131 Mo.App. 263; Hoster v. Lange, 80 Mo.App. 234; Clemens v. Knox, 31 Mo.App. 185; Lindhorst v. Terry, 1 Mo.App. 604; Weese v. Brown, 14 S.W. 945, 102 Mo. 299; U.S.C. A., Title 25, sec. 248. (4) This is a suit against the carrier upon its common-law liability for loss of merchandise. Nickey v. St. L. I. M. & S. Ry. Co., 35 Mo.App. 79. (5) The answer of defendant (p. 7 et seq.) admitted that the defendant received our goods, but did not deliver them to us at New York. All of the testimony of defendant likewise concedes these facts. Hence, there was no question of fact for the jury so far as plaintiff's case was concerned and the trial court properly took those questions from the jury, submitting to the jury only the question of damages. Weese v. Brown, 102 Mo. 299, 14 S.W. 945; Clemens v. Knox, 31 Mo.App. 185; Richey v. Branson, 33 Mo.App. 418; Stephens v. Koken Barber Supply Co., 67 Mo.App. 587; Hoster v. Lange, 80 Mo.App. 234; Crawford v. Stayton, 131 Mo.App. 263, 110 S.W. 665; St. Charles Savings Bank v. Orthwein Inv. Co., 160 Mo.App. 369, 140 S.W. 921; Sturdivant Bank v. Houck, 215 S.W. 758. (6) Unless the defendant made a submissible case for the jury upon its affirmative defense, there was no factual question in the case, nothing for the jury to decide, and it remained only for the court to "pronounce the judgment of the law upon the undisputed facts." Clemens v. Knox, 31 Mo.App. 185. The affirmative defense of the carrier was that the merchandise was taken from it by process of law. Before such defense may be valid as a matter of law, it must appear, and the burden is on defendant to prove, that (1) the seizure was not the result of any act of the carrier (such as collusion, consent, connivance or negligence), and (2) that it was made by an officer of the law acting under authority apparently valid on its face. Ford v. Wabash, 300 S.W., l. c. 775.

N.W. Hartman and Fordyce, White, Mayne & Williams for appellant.

(1) A carrier will not be held responsible for nondelivery or loss of goods to the consignee or owner, when goods are taken out of the carrier's possession under authority of law apparently valid on its face, or by process of law either mesne or final. Danciger v. A. T. & S. F. Ry. Co., 179 S.W. 800; C. B. & Q. R. R. v. Fowler, 27 S.W.2d 72; McAllister v. Chi., R. I. & P. R. R., 74 Mo. 351; Pingree v. Detroit & Northern R. R. Co., 66 Mich. 143, l. c. 145, 11 Am. St. Rep. 479; Jewett v. Olsen, 18 Oregon, 414, 17 Am. St. Rep. 745, l. c. 748; R. R. Co. v. O'Donnell, 49 Ohio St. 489, l. c. 500, 32 N.E. 476, 479. (2) A carrier should not resist an officer of the law, even where he has apparent authority, for such procedure is consonant with law and order and with established forms of government. Southern R. Co. v. Heymann, 118 Ga. 616, l. c. 622, 45 S.E. 491, 493; C. B. & Q. R. R. v. Fowler, 27 S.W.2d 72; Pingree v. Detroit & Northern R. R., 66 Mich. 143, 11 Am. St. Rep. 479; Stiles v. Davis, 1 Black 101, 17 L.Ed. 33; Ohio etc. R. Co. v. Yohe, 51 Ind. 181, l. c. 184, 19 Am. Rep. 727. (3) When goods are taken from a carrier by law he is excused for nondelivery dependent on the following three conditions: (1) That the carrier cannot be guilty of fraud, collusion, consent or connivance; (2) that the seizure was made by an officer of the law acting under authority apparently valid on its face; (3) that the carrier must give notice to the consignor--this notice being for the purpose of enabling him to protect his own interests. Danciger v. A. T. & S. F. Ry., 179 S.W. 800; C. B. & Q. R. R. v. Fowler, 27 S.W.2d 72; Pingree v. Detroit & Northern R. R., 66 Mich. 143, 11 Am. St. Rep. 479; 2 Hutchinson on Carriers (3 Ed.), secs. 738, 740. (4) The measure of damages for the loss of a shipment is not the market price at which it can be replaced, replacement by purchase in the market not being within the contemplation of the parties, but the value of the shipment at the time and place at which it should have been delivered, with interest, less freight charges if not paid. Crail v. Ill. Cent. R. R. Co., 2 F.2d 287; U. S. v. Palmer & Parker Co., 61 F.2d 455, l. c. 460; Ill. Cent. R. R. v. Crail, 281 U.S. 56, 74 L.Ed. 694. (5) It is not necessary to secure a search warrant in order to search and seize moving freight. Nicholson et al. v. U.S. 6 F.2d 569; Geo. Carroll and John Kiro v. U.S. 267 U.S. 132; Milam v. U.S. 296 F. 629; Ash v. U.S. 299 F. 277; U. S. v. Vatune, 292 F. 497; U. S. v. Westmoreland Brewing Company, 294 F. 735. (6) The decision of this court heretofore rendered reversing the decision of the lower court outright is correct, as there is nothing for the consideration of a jury. Gooden v. Modern Woodmen of America, 194 Mo.App. 666, l. c. 668; Bond v. Sanford, 134 Mo.App. 477, l. c. 481; Bridge v. Welda State Bank, 292 S.W. 1079, l. c. 1084; Wharton v. Denny, 296 S.W. 183, l. c. 187; State ex rel. Waggoner v. Lichtman et al., 131 Mo.App. 65, l. c. 68. (7) The authorities cited in section two of respondent's motion for rehearing and brief are not entitled to consideration. Rule 23 of the St. Louis Court of Appeals. (8) Section 26 of the National Prohibition Act is properly within the purview of the above case, the testimony of which shows a transportation within the meaning of that section. Danovitz v. U.S. 281 U.S. 389, 74 L.Ed. 923, l. c. 926; Gatewood v. Continental General Life Ins. Co., 23 F.2d 211, l. c. 213; Webster's International Dictionary; U. S. v. Westmoreland Brewing Co., 294 F. 735, l. c. 736, 737, 739; Nicholson v. U.S. 6 F.2d 569, l. c. 570. (9) This court in its first opinion properly followed Danciger v. American Express Company. Danciger v. American Express Co. (Mo. App.), 179 S.W. 800; Danciger v. American Express Co., 212 S.W. 5; Carroll v. U.S. 267 U.S. 132, 69 L.Ed. 543, l. c. 549, 551, 552; Shannon v. Hines, 205 Mo.App. 629, l. c. 636, 637. (10) There has been no negligence in the handling of the shipment involved in this case. Danciger v. American Express Co. (Mo. App.), 179 S.W. 800, l. c. 805; Southern Railway Co. v. Heymann, 118 Ga. 616, l. c. 622.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for the loss of three shipments of toilet preparations delivered by plaintiff to defendant at St. Louis to be transported to pier 22, New York City. Defendant, admitting the three shipments of toilet preparations, set up as a defense to the action that the shipments were seized by federal prohibition officers, and also set up a counterclaim for freight charges.

The trial, with a jury, resulted in a directed verdict for plaintiff on both plaintiff's cause of action and defendant's counterclaim. Judgment was given accordingly. Defendant appeals.

The action of the court in directing a verdict for plaintiff on its cause of action and on defendant's counterclaim is assigned as error here.

There appears to be no dispute about the essential facts.

The first shipment in question was made on June 19th, the second on June 25th, and the third on July 2, 1929. All the shipments were consigned to the plaintiff with instructions to notify Da Bro Oil and Supply Company. The goods were contained in one-gallon cans, which were enclosed in wooden cases. Each shipment consisted of twenty-five cases. Each case contained twenty cans.

The first and second shipments were seized by federal prohibition officers in the Waverly Transfer Yards of the defendant company at Newark, New Jersey. The third shipment was seized at pier 22 in New York City.

It was conceded at the trial, and here as well, that plaintiff was duly notified of the seizures.

The federal officers who seized the shipments had no search warrant or other process. They had with them, and exhibited,...