Rice v. Indianapolis & St. Louis R.R. Co.

• Citation: 3 Mo.App. 27
• Parties: FRANK R. RICE et al., Respondents, v. INDIANAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant.
• Decision Date: 17 October 1876
• Court: Court of Appeal of Missouri (US)

3 Mo.App. 27

FRANK R. RICE et al., Respondents,

v.INDIANAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 17, 1876.

1. A voluntary appearance cures all defects of process, and defendant, after appearing and defending generally, cannot deny the jurisdiction of the court over his person.

2. In an action against a common carrier for the conversion of a part of goods shipped as first-class freight, but which were proved to be double first-class, the defendant is entitled to receive double rates, and to be credited therefor.

3. In an action against a common carrier, for conversion, plaintiff is entitled to the value of the goods converted, at the point of destination.

4. A classification of freight, with a view to escape the payment of the proper rate, by the consignor, will not disable the consignee, to whom the goods belong, from maintaining an action for conversion against the carrier. The payment or tender of the proper rate, where another rate has been received, is not necessary to the maintenance of an action for conversion.

5. Where a number of common carriers combine under a name, for the purpose of carrying freight for hire along the route of all, an action for conversion may be maintained against them jointly or severally; and, to maintain an action against one, it is not necessary to prove that the goods were lost while in his possession, nor to prove a special contract with him for their carriage.

6. Where A ships goods, securely boxed, to be delivered to B, and a part only are delivered, the presumption is that the loss occurred while the goods were in the carrier's possession.

APPEAL from St. Louis Circuit Court.

Affirmed.

John M. Woodson, for appellant, cited: Middough v. St. Joseph & Denver City R. R. Co., 51 Mo. 521; Farnsworth v. Terre Haute & St. Louis R. R. Co., 29 Mo. 75; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Robb v. Chicago & Alton R. R. Co., 47 Mo. 540; Eberly et al. v. Moore et al., 24 How. 147; Conkling's Treatise, 355-357; Wag. Stat. 292, sec. 19, p. 1016, secs. 13, 14; Nelson v. Brodhack, 44 Mo. 596; Cincinnati & Chicago Air Line R. R. Co. v. Marcus, 38 Ill. 220; The Chicago & Aurora R. R. Co. v. Thompson, 19 Ill. 578; 2 Hill. on Torts, 564, sec. 22; Add. on Con., 3d ed., 446, 467, 487; 2 Redf. on Rys. 114-120, and notes; Detroit & Milwaukee Ry. Co. v. Farmers' Bank, 20 Wis. 122; Foy v. Troy & Boston Ry. Co., 24 Barb. 382; Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 N. Y. 399; Thompson v. Greenwood, 28 Ind. 327; Bond v. Wagner, 28 Ind. 462; Freeman v. Carpenter, 17 Wis. 126; Mahew v. Robinson, 10 How. Pr. 162; Bridge v. Payson, 5 Sandf. 210.

Leverett Bell, for respondents, cited: Orear v. Clough, 52 Mo. 55; Griffin v. Van Meter, 53 Mo. 430; Rippstein v. St. Louis Mutual Life Ins. Co., 57 Mo. 86; Peters v. St. Louis & Iron Mountain R. R. Co., 59 Mo. 406; Laughlin v. Central & Northwestern Ry. Co., 28 Wis. 204; Smith v. New York Central R. R. Co., 43 Barb. 225.

GANTT, P. J., delivered the opinion of the court.

The plaintiffs sued the defendant and the White Line Central Transit Company to the June term, 1874, of the St. Louis Circuit Court, alleging that the White Line Central Transit Company was an association composed of several enumerated corporations, of which the Indianapolis & St. Louis Railroad Company was one, engaged in the business of transporting merchandise from New York to St. Louis as common carriers. That plaintiffs purchased in New York City 100 boxes of cigars, each containing fifty, and the same were, on July 1, 1873, delivered to the defendant, to be conveyed to the plaintiffs at St. Louis for hire. That defendants converted to their own use thirty-four of these boxes, of the value of $122, and for this sum they asked judgment.

The defendants appeared at the June term and asked time to plead, answer, or demur, which was granted. After the expiration of this time, during which no plea, etc., was filed, an agreement in writing was made, whereby plaintiffs gave defendants time to September 15, 1874, to plead, etc. On September 22d the White Line Central Transit Company filed a plea in abatement, denying that on July 1, 1873, or at any time, there was any such association as the White Line Central Transit Company in the State of New York or elsewhere, but say that they are engaged in the business of transporting merchandise between St. Louis and New York under the general name of the “White Line Central Transit Company.” The plea was verified by affidavit. On the same day the Indianapolis and St. Louis Railroad Company filed a demurrer to the petition, alleging that plaintiffs did not inculpate defendant except as a member of the White Line, etc. Thereupon plaintiffs confessed the plea in abatement, and filed an amended petition charging all the several corporations composing the aforesaid White Line, etc., alleging that several defendant corporations were engaged in business as common carriers between New York City and St. Louis; that defendants styled themselves the White Line, etc. The rest of the petition was as in the original document. This amended petition was filed October 23, 1874. On October 28, 1874, the Indianapolis & St. Louis Railroad Company moved to dismiss the suit, because it did not appear in the petition that defendant had its chief office or place of business in the State of Missouri. The court overruled this motion, and defendant excepted. It then answered that it was a foreign corporation, created by the laws of Indiana; that it did not, at the commencement of this action, own and operate a railroad terminating opposite to the city of St. Louis, but at Indianapolis, Indiana. The answer proceeded to ignore the partnership of plaintiffs; admitted that it and the other defendants were, on July 1, 1873, engaged as common carriers between St. Louis and New York, under the general name of the White Line, etc., but that said business was carried on under certain limitations, by which the partners restricted their liability; that each company was to be liable only for loss incurred while the property was in its charge; and denied that the loss in this instance occurred while the property was in defendant's charge; that such merchandise as that of plaintiffs was subject to double rates, but plaintiff only paid single rates; that the boxes were not securely fastened. This answer was extended to great length, and set forth much irrelevant matter in anything but a plain and concise style. The plaintiffs moved to strike out many parts of this answer, and the court sustained the motion, defendants excepting. Among the points struck out were the following:

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