Rosenberger v. Pacific Express Co.

• Decision Date: 20 May 1914
• Docket Number: No. 16502.,16502.
• Citation: 167 S.W. 429,258 Mo. 97
• Parties: ROSENBERGER v. PACIFIC EXPRESS CO.
• Court: Missouri Supreme Court

167 S.W. 429

258 Mo. 97

ROSENBERGER v. PACIFIC EXPRESS CO.

No. 16502.

Supreme Court of Missouri.

May 20, 1914.

1. COMMERCE (§ 64) — CONTRACTS (§ 105) — INTERSTATE COMMERCE—VALIDITY OF STATE REGULATIONS.

A state statute, imposing on all parties handling liquors C. O. D. an annual occupation tax of $5,000 for each place maintained for that purpose, was valid as applied to interstate carriers, and excused the failure of such a carrier to deliver to the consignee a C. O. D. shipment delivered to it shortly before such statute became effective, since the collection of the purchase price of articles transported by a carrier is entirely independent of its duty to receive, transport, and deliver such articles, and such collection, and the storage of the goods while awaiting payment, is governed by the law of the place of delivery, under the rule that acts in the execution of a contract are governed by the law of the state where it is to be executed.

2. CARRIERS (§ 94) — C. O. D. SHIPMENTS — FAILURE TO DELIVER—LIABILITY.

Where a carrier, which received a C. O. D. shipment for transportation, returned it to the place of origin, and offered to deliver it to the shipper upon payment of the return charges because of a statute preventing it from making delivery without paying a heavy occupation tax, its liability, if any, was for breach of the contract, and not for conversion.

Bond and Faris, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Abram Rosenberger against the Pacific Express Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is a suit in conversion. The facts of this case are undisputed and are briefly as follows: The plaintiff, at all the times hereinafter mentioned was a wholesale liquor dealer in Kansas City, Mo., transacting business in the ordinary manner throughout the United States; and the defendant, the Pacific Express Company, a common carrier, was during said times engaged in carrying express matters throughout the United States, and especially from the state of Missouri to the state of Texas. That shortly prior to February 12, 1907, the plaintiff delivered to the defendant, express prepaid, certain packages of liquor to be transported by it to the former's customers in the state of Texas; the delivery thereof to be made on the payment of the price thereof, as will be presently stated. On said February 12, 1907, the state of Texas duly enacted a statute imposing an occupation tax on all persons and corporations "handling liquors C. O. D." The license or tax imposed by the statute was $5,000 a year at each place maintained for that purpose. That after the acceptance of said liquors by the defendant and prior to their delivery, said statute went into effect, and the defendant refused to deliver the packages or to collect the price thereof, and after due notice returned the same to the plaintiff at Kansas City, where they offered to deliver them to the plaintiff, upon condition that he pay the return express charges thereon. The plaintiff refused to pay said charges, and to accept said goods, and the defendant now holds the same, as it claims, for the use of the plaintiff. The plaintiff instituted this suit in the circuit court of Jackson county against the defendant for converting said goods to its own use. The terms and conditions of the contract of carriage and delivery to be subsequently mentioned, made and entered into by and between the plaintiff and defendant, were in writing, and expressed in a receipt given to the former by the latter upon the receipt of the goods for shipment. This receipt is the ordinary one given by express companies to the consignor of goods; and paragraph 6 thereof, the one relating to the C. O. D. question involved in this case, reads as follows:

"If any sum of money besides the charges for transportation is to be collected from the consignee on delivery of the above described property and the same is not paid for or if in any case the consignee cannot be found, or for any other reason it cannot be delivered, the shipper agrees that this company may return said property to him subject to the conditions of this receipt, and that he will pay all charges for transportation," etc.

By paragraph 3 of the same contract it is also provided that:

"Defendant shall not be liable for any loss or damages by act of God, or of the enemies of government, or by the restraint of government," etc.

That after the taking effect of the Texas statute the defendant notified the plaintiff that if he would release the C. O. D. contract, it would deliver the goods to the consignee; this the plaintiff refused to do, but insisted on the defendant carrying out its contract of shipment and delivery, and that it deliver the packages to the consignee and collect the C. O. D. charges which it refused to do; but upon the contrary ordered its agent to return the liquor to Kansas City, and charged the return express charges to the plaintiff, as previously stated.

Watson, Watson & Alford, of Kansas City, for appellant Pacific Express Co. A. F. Smith and Rozzelle, Vineyard & Thacher, all of Kansas City (Frank A. Boys, of Kansas City, of counsel), for respondent.

WOODSON, P. J. (after stating the facts as above).

I. Counsel for appellant ask for a reversal of the judgment of the circuit court for two reasons: First, because it held that the statutes of Texas, mentioned, was no excuse or justification for the defendant's refusal to deliver the packages mentioned; second, because the undisputed evidence shows that if the defendant is liable to the plaintiff in any manner, it is for a breach of contract, and not for a conversion of the goods. We will dispose of these propositions in the order stated.

Regarding the first: It is confidently insisted by counsel that the Texas statute is a perfect bar to plaintiff's right of recovery in this case. This insistence is predicated upon the fact that the Court of Civil Appeals of Texas, in the case of Craddock & Co. v. Wells-Fargo Express Co., 125 S. W. 59, held said statute to be constitutional and valid, and therefore, under the well-known rule of law, to the effect that where one agrees to do an act lawful at the time, and subsequently thereto the Legislature passes a law making the performance of that act illegal, the contract of performance is thereby annulled. Church v. New York, 5 Cow. (N. Y.) 538; Cordes v. Miller, 39 Mich. 584, 33 Am. Rep. 430; Stone v. Mississippi, 101 U. S. 814, 25 L. Ed. 1079. Of course this rule only applies to contracts and statutes relating to matters embraced within the police power of the state.

Counsel for plaintiff with equal confidence contend that, while the Texas statute may be valid as a defense to intrastate shipments, like the Craddock Case, supra, yet it has no application to interstate shipments, like the present case, where the liquor was shipped from one state to another. This class of cases, it is contended, is governed by the interstate commerce clause of the Constitution of the United States, and that if the Texas statute is intended to apply to shipments of this character, then it is unconstitutional and void. So in no event, it is insisted, can that statute constitute a bar against plaintiff's right to a recovery in this case. In support of this proposition we are cited to many cases, and, among others, Adams Express Co v. Kentucky, 206 U. S. 129, 27 Sup. Ct. 606, 51 L. Ed. 987; American Express Co. v. Iowa, 196 U. S. 133, 25 Sup. Ct. 185, 49 L. Ed. 424; Norfolk Ry. Co. v. Sims, 191 U. S. 441, 24 Sup. Ct. 151, 48 L. Ed. 254; Allen v. Pullman Co., 191 U. S. 171, 24 Sup. Ct. 39, 48 L. Ed. 134...