Rainer v. Western Union Telegraph Co.

• Decision Date: 03 March 1936
• Docket Number: No. 5649.,5649.
• Citation: 91 S.W.2d 202
• Parties: RAINER v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

91 S.W.2d 202

RAINER v. WESTERN UNION TELEGRAPH CO.

No. 5649.

Springfield Court of Appeals. Missouri.

March 3, 1936.

Appeal from Circuit Court, Oregon County; Will H. D. Green, Judge.

"Not to be reported in State Reports."

Action by Fred Rainer against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Francis R. Stark, of New York City, and H. D. Green, of West Plains, for appellant.

Homer Rinehart and J. N. Burroughs, both of West Plains, for respondent.

ALLEN, Presiding Judge.

This action originated in Howell county, was sent on change of venue to Oregon county, and tried in the circuit court of the latter county, at the November term, 1934.

The facts in evidence were in substance as follows:

On or about May 5, 1932, plaintiff, who engaged in the trucking business in West Plains, Mo., contracted with the Kent Dairy Products Company, also of West Plains, to haul 100 cans of cream from West Plains to the New Orleans Ice Cream Company, at New Orleans, La. The cream was loaded at West Plains on the night of May 5, 1932, into an open truck of plaintiff, and was in ordinary milk cans, packed with about 1,800 pounds of ice, which J. P. Faulkner, the manager of the Kent Dairy Products Company, testified was, in his opinion, sufficient to carry the cream in good condition as far as Little Rock, Ark. The truck left West Plains at about 11 o'clock on the night of May 5th, with respondent's brother, Elgin Rainer, and Jimmie Huddleston as drivers. They arrived at or near Little Rock about 5 o'clock p. m. the next day, where one of the tire casings blew out. Elgin Rainer, one of the drivers, sent a telegram to respondent at West Plains, requesting respondent to wire him, in care of the A. C. Oil Company, $60 with which to buy a new tire. Respondent wired the money order, as directed.

The petition alleged that the money order was not delivered to the driver, Rainer, until about 9:30 p. m. on May 6th. Rainer claimed that he was ready to leave Little Rock at 7 o'clock p. m. on that day, but that by reason of the delay in delivery of the money order he was unable to leave Little Rock until about 10 o'clock p. m.

The evidence was that the cream did not arrive in New Orleans until 11 p. m. on the night of the next day, May 7th.

The drivers testified that, when they arrived at New Orleans, the plant of the New Orleans Ice Cream Company had closed, so they were unable to deliver the cream until 8 o'clock a. m. May 8th, when it was found that 38 cans of cream had soured, and that by reason of that fact the ice cream company refused to accept the sour cream, for which reason it was necessary to return the sour cream to West Plains, Mo. The drivers both testified that the plant at New Orleans closed at 8 o'clock p. m., and that at the time of their arrival at New Orleans the plant was closed; that neither of the drivers made any attempt to get in touch with the employees of the ice cream company; that after their arrival at New Orleans they did not re-ice the cream, but simply drove near the plant, with the cream, remained in the truck, and went to sleep until the next morning. Huddleston testified that they only iced the cream once after they left Little Rock.

Faulkner, the manager of the Kent Dairy Products Company, said that his company sent 100 cans of cream on the truck; that he was present when the truck was loaded; that from the kind of refrigeration they had at the time the truck was loaded at West Plains he thought the cream was sweet when loaded; that he was acquainted with the New Orleans Ice Cream Company, was in the company's plant in New Orleans, after this, and that the plant was open twenty-four hours a day; that the cream should have arrived in New Orleans fit for the purpose of manufacturing ice cream. Elgin Rainer, in charge of the truck, testified that the plant of the New Orleans Ice Cream Company closed at 8 p. m. on the night of their arrival in New Orleans, and his testimony was supported by that of Huddleston.

The finding of the jury in the trial court was for plaintiff in the sum of $100, from which judgment the defendant appeals to this court.

To plaintiff's fourth amended petition the defendant's answer was in substance as follows:

Defendant, further answering plaintiff's fourth amended petition, said that, at the time the plaintiff alleged that he entered into a contract with the Kent Dairy Products Company, plaintiff was operating a truck as a common carrier, engaged in interstate commerce, without a permit from the Public Service Commission of the state of Missouri, and without permission from the Interstate Commerce Commission, and was therefore operating said truck at the time of the making of the contract with the Kent Dairy Products Company, in violation of the law, and that the said contract with the Kent Dairy Products Company was especially void and not binding upon the said plaintiff, Fred Rainer, or the Kent Dairy Products Company.

Defendant, further answering, stated that plaintiff at the time of the alleged injury was a common carrier, engaged in interstate commerce, and as such had no right under the state or federal laws to make any special contract with the shipper to deliver the products in the same condition as when received.

Defendant denied specifically that it was negligent in the transmission or delivery of the telegram set out in plaintiff's fourth amended petition; denied that plaintiff was damaged in any amount; and denied that any damage was caused to plaintiff through any fault or negligence of defendant.

The reply was a general denial as to the new matter contained in the answer.

We shall only discuss the single question in this case, to wit, that urged by appellant: "That it is unlawful for motor vehicles to use any of the highways of this state for transportation of property in interstate commerce without first having obtained from the state a permit to do so." Laws of Missouri, sections 5264 to 5280, inclusive, of article 8, chapter 33, R.S.1929, as amended by the Session Acts of 1931, p. 304 (Mo.St.Ann. §§ 5264-5280, pp. 6679-6695).

Section 5275 of article 8, chapter 33, of the Revised Statutes of Missouri 1929, as amended by the Session Acts of 1931, pp. 314 and 315 (Mo.St.Ann. § 5275, p. 6692), is as follows:

"Penalties — Misdemeanor. Every owner, officer, agent, or employee of any motor carrier, contract hauler, and every other person, who violates or fails to comply with or who procures, aids or abets in the violation of any provision of this act, or who fails to obey, observe or comply with any order, decision, rule or regulation, direction, demand or requirement of the commission, and who procures, aids or abets any corporation or person in his failure to obey, observe or comply with any such order, decision, rule, direction, demand or regulation thereof shall be guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment."

By the testimony of plaintiff, Fred Rainer, the exhibits and evidence introduced by plaintiff, it was established that, at the time plaintiff made the contract with the Kent Dairy Products Company, at West Plains, to haul its cream, plaintiff did not have, and did not thereafter obtain from the Public Service Commission of Missouri, an interstate permit to operate a truck line, as required by the laws of Missouri.

The contract between the owner of the cream and the plaintiff, the owner of the truck, for the carriage of the cream, was over a route upon which he had no lawful authority to operate as provided by said sections 5274 and 5275 of article 8, chapter 33, of the R.S. of Mo.1929, as amended by the Session Acts of 1931, pp. 314, 315 (Mo. St.Ann. §§ 5274, 5275, p. 6692).

Respondent had no lawful right to contract with the Kent Dairy Products Company to haul, nor to haul the cream in question in interstate commerce, and the Kent Dairy Products Company aided and abetted the unlawful contract of respondent by employing respondent to haul the cream, knowing that respondent had no lawful right to transport the cream over the route in evidence, by reason of the fact that no interstate permit to haul cream in interstate commerce had been granted to Fred Rainer, respondent. Therefore respondent and the Kent Dairy Products Company each violated the provisions of section 5275 of article 8, chapter 33, R.S.Mo.1929, as amended by the Session Acts of 1931, pp. 314, 315, and each was guilty of a misdemeanor under the section last above mentioned.

The application of the Rainer Truck Line, in evidence, dated at West Plains, Mo., the 5th day of December, 1931, was thereafter at a session of the Public Service Commission on the 3d day of November, 1932, taken up by said commission, and applicant was given ten days from the date thereof in which to pay his license fees file with the commission approved insurance policies and other necessary policies, and other necessary filings preliminary to the issuance of the commission's authority to operate as a motor carrier for hire; the applicant having failed to meet the requirements of the law within the ten-day period prescribed in said communication, and the commission having sent a second letter to the applicant, notifying him of his failure so to respond, and giving him another ten-day period in which to meet the commission's requirements, and there having been no response to said communication, the Commission was of the opinion that the application should be dismissed, which was by the commission done, as per the following order:

"1. That the above numbered application be and the same is hereby dismissed.

"2. That this order take effect on this date and that the Secretary of the Commission shall forthwith serve certified copy of same upon all interested parties."

So that from the evidence it conclusively...