Russell Grain Co. v. Chicago, Great Western Railroad Co.
| Citation | 237 S.W. 159,208 Mo.App. 485 |
| Parties | RUSSELL GRAIN COMPANY, a Corporation, Respondent, v. CHICAGO, GREAT WESTERN RAILROAD COMPANY, a Corporation and BALTIMORE & OHIO RAILROAD COMPANY, a Corporation, Appellants |
| Decision Date | 30 January 1922 |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri.--Hon Clarence A. Burney, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
John S Cannon for respondent.
Warner Dean Langworthy, Thomson & Williams for appellant.
--This is a suit in damages for alleged failure to transport and deliver, as per contract, a carload of alfalfa hay.
Plaintiff is a Missouri corporation, engaged in buying and selling hay, with its principal office and place of business in Kansas City, Missouri. Defendants are railroad corporations, duly organized and existing, engaged in the transportation of freight and passengers for hire.
Plaintiff, acting through one McGregor, its broker and representative at Fairmont, W. Va., sold to Arch Fleming of that place three carloads of alfalfa hay, the first of which was delivered prior to this controversy, the second is the one involved in this controversy, and the third was diverted by plaintiff and not received by Fleming.
The shipment in controversy originated at Buhl, Idaho, was transported to Kansas City over the Union Pacific Railroad, and billed from Kansas City to Fairmont showing point of origin as Buhl, Idaho, in order to obtain the benefit of the through rate from Buhl to Fairmont. The original bill of lading was taken up and a new one, prepaid, issued to plaintiff re-routing the shipment via the Chicago, Grant Western Railroad at Kansas City by which it was carried by that road to Chicago and there delivered to the Baltimore & Ohio Railroad which transported it to destination.
The bill of lading read "shipper's order, notify," etc. That is, shipment was consigned to plaintiff, with directions to notify "Arch Fleming." The bill of lading then was attached to a draft for the purchase price of the hay and forwarded to a local bank at Fairmont so that upon payment of the draft, Arch Fleming would have been entitled to the bill of lading, on presentation of which to the agent of the Baltimore & Ohio Railroad, he should have received the shipment. The car arrived at Fairmont on November 23, 1912, at 11 p. m., carrying freight charges of $ 282.50, and so remained with charges against it until December 5, 1912.
Fleming was notified the day of the arrival of the shipment but refused to accept it because the railroad company would not deliver the car unless the freight charges were paid. This status remained until December 7, following, when the hay was stored by the Baltimore and Ohio company, Fleming having been notified on December 5, that the freight charges had been prepaid and that the hay would be delivered on presentation of the bill of lading without further payment of freight charges.
The hay remained in storage until January 11, 1913, when suit was instituted by Fleming against plaintiff herein, alleging failure of plaintiff to deliver the third car of hay, a part of the original order of three cars, and which was to follow the shipment of the car in question in this suit. The hay in question was attached and sold February 21, 1913, under orders of the court, on judgment rendered in the suit of Fleming against Russell Grain Company. Plaintiff herein was notified of the Fleming suit, but made no defense thereto.
Fleming testified that after he was notified by the Railroad Company that the hay would be delivered to him without further payment of freight charges, and before the hay had been stored, he examined it by permission of Mr. McGregor, agent of plaintiff, and then refused to accept it because the quality was inferior to the grade purchased and that he would have accepted the hay after November 24, if it had been up to grade.
The record shows that this suit was instituted before a justice of the peace of Kaw Township, Jackson County, Mo. Judgment was for plaintiff and an appeal was taken to the circuit court of said county where a trial to a jury resulted in a verdict for plaintiff in the sum of $ 484.35. There are no formal pleadings of record and none at all save the petition in the justice court. At the close of the evidence defendants each requested an instruction in the nature of a demurrer to the evidence, both of which were by the court refused. Motions for new trial and in arrest were overruled and defendants appeal.
The first assignment of errors relates to the refusal of the court to sustain a demurrer to the evidence, as requested by both defendants, and it is urged there was no evidence of any improper act or omission on the part of the Chicago, Great Western company and that delivery was offered free of freight charges by the Baltimore & Ohio company, as soon as the mistake with respect to freight charges was discovered prior to the institution of this suit.
It is admitted by both defendants that an error was made in the billing of the hay at Kansas City with freight charges collect, instead of charges paid, as provided in the contract. Plaintiff, of course, would have no means of knowing where the error occurred. This circumstance is sufficient evidence from which the jury might reasonably infer that the "improper act or omission" was committed by both defendants. The record shows a delay of 12 days from the date of the receipt of the hay at Fairmont and the time it was offered to Fleming, free of freight charges. Plaintiff's contention is that this delay was unreasonable and that defendants are liable for resulting damages by reason thereof.
Defendants cite the case of Shewalter v. Railroad, 84 Mo.App. 589, in support of their position on this question. An analysis of that case discloses many elements included in the facts before us. The court held:
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