Schneider v. Campbell 66 Exp., Inc.
| Decision Date | 19 May 1959 |
| Docket Number | No. 30213,30213 |
| Citation | 324 S.W.2d 363 |
| Parties | John S. SCHNEIDER and Tony E. Schnelder, copartners, doing business as the Jefferson County Record, Plaintiffs-Respondents, v. CAMPBELL 66 EXPRESS, INC., Defendant-Appellant, C. E. S. Truck Lines, Inc., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
William C. Dannevik, Jr., Springfield, for appellant-defendant.
Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, for respondents-plaintiffs.
SAMUEL A. DEW, Special Commissioner.
Plaintiffs-respondents brought this action against the defendant-appellant and the defendant-respondent C. E. S. Truck Lines, Inc., both common carriers, to recover $5,500 in damages to a dismantled printing press, sustained while being transported by truck and trailer in an interstate shipment. At the close of the plaintiffs' evidence, the court overruled the motion of the defendant-appellant for a directed verdict, but sustained a similar motion of the defendant-respondent, as to which the petition was then dismissed. The final verdict and judgment in the case were in favor of the plaintiffs-respondents and against the defendant-appellant in the sum of $5,500, from which the latter has taken this appeal. The defendant-respondent C. E. S. Truck Lines, Inc. has filed no brief in the appeal, nor otherwise participated in it.
For convenience, the plaintiffs-respondents will be referred to herein as the respondents, the defendant-appellant as the appellant, and the defendant-respondent as the defendant C. E. S. Truck Lines, Inc.
The petition alleged that the respondents purchased from one William S. Evans, a used printing press located at McComb, Mississippi, for the price of $13,000 to be dismantled by the seller and by him loaded for shipment to the respondents by truck and trailer at Hillsboro, Missouri; that accordingly the press was dismantled, loaded and delivered in good condition to the appellant, a common carrier for hire at McComb, Mississippi, which accepted the same and, in consideration of a charge of $293.76, agreed to transport it safely to said destination and deliver it to respondents as consignees; but that the defendants failed to deliver the press well and safely as agreed, and upon arrival the press and the operating parts were found to be broken and damaged while in transit and while in the exclusive possession of the defendants, common carriers, their agents and servants. It is alleged that the respondents do not know what caused the damage aforesaid, such information being peculiarly within the knowledge of the defendants. It is averred that the press had a value of $13,000 when delivered to defendants, and, as a result of the breakage and damage sustained in transit, it had, upon arrival at Hillsboro, Missouri, a reasonable value of $7,500. The prayer was for judgment in the sum of $5,500.
The answers were separate and in the nature of specific denials of the allegations of liability. Appellant denied that respondents were the real parties in interest. Neither defendant, in its answer, charged that the damage, if any, was caused solely by the negligence of the other.
According to the evidence of the respondents, they purchased for $13,000 a used Model A Duplex Printing Press in April, 1955, from William S. Evans Company, which press was located at McComb, Mississippi, paying at that time $7,800 on the purchase price, the balance being paid upon delivery to respondents at Hillsboro, Missouri, in May, 1955. Pursuant to the agreement of purchase, the seller carefully dismantled the press and skillfully loaded it and its operating parts in good condition in the appellant's trailer, consigned to be transported by truck to the respondents at Hillsboro, Missouri, as per way bill issued by the appellant. The seal attached to the door of the trailer, after the press was loaded, was broken by the appellant before leaving the point of shipment. When the trailer arrived at respondents' place of business in Hillsboro, Missouri, it was being hauled by defendant C. E. S. Truck Lines, Inc. Upon opening the door of the trailer it was found that the parts of the dismantled press were not in the position in which they had been loaded and one of the cross-heads, which was a vital part of the press and weighing three or four hundred pounds, had been broken into two pieces. There was evidence that thereafter the respondents had the cross-head welded and were using it, but that the breakage caused the whole assembly to run out of line and to wear unevenly. There was testimony that the press was reasonably worth only $5,500 when delivered to respondents. There was also evidence tending to show that the seal of the truck had again been broken and another attached at Jackson, Mississippi, and that it had still another seal when arriving at the destination. There was evidence that none of the seals had been broken by the defendant C. E. S. Truck Lines, Inc.
Testifying in behalf of appellant, its terminal manager at McComb, Mississippi, was permitted to state that the bill of lading issued to the respondents did not entitle them to the exclusive use of the trailer, and that other forms of bills of lading were necessary for that privilege. He said the original seal was broken because the top of the door of the trailer was not fastened. He said, however, that he did not know of any right reserved by his company to break a seal under the terms of the way bill issued. Appellant's terminal manager at Jackson, Mississippi, testified that the seal of the truck was broken at that point by appellant's agent in order to repair the lights on the trailer, after which a new seal was attached. He said nothing was taken from or added to the contents of the trailer. At St. Louis, the appellant delivered the trailer to the defendant C. E. S. Truck Lines, Inc. for transportation from that point to destination. Interrogatories were introduced by respondents to show admission by one of appellant's witnesses that the seal was broken at Jackson, Mississippi, in order to see if the trailer would accommodate additional freight. A witness familiar with the press in question testified that the efficiency of the press had not been affected by the breakage, since it had been repaired.
Appellant's first point of error is that the court erred in sustaining the motion of the defendant C. E. S. Truck Lines, Inc. for a directed verdict at the close of the plaintiffs' case and in dismissing the petition as to that defendant. Under that assignment appellant asserts (1) That such ruling was, in effect, a finding that the evidence was insufficient in law to prove C. E. S. Truck Lines, Inc. guilty of causing the damage to the shipment and was a finding that appellant was solely at fault; (2) That since respondents' evidence showed the shipment was delivered to the initial carrier in this case in good condition and was found damaged upon delivery by the delivering carrier, and no proof being supplied as to which carrier was negligent, a rebuttable presumption arose under the law that the damage occurred while the shipment was in the possession of the delivering carrier; (3) That the petition should not have been dismissed as to defendant C. E. S. Truck Lines, Inc., the delivering carrier, until or unless it had rebutted that presumption. Appellant points out that the present proceeding is a joint action against the defendants.
Appellant concedes that under the Carmack Amendment to the Interstate Commerce Act (49 U.S.C.A. Sec. 20(11)) and other authorities cited, a case was established against it by the respondents' evidence, but claims that such liability in no way abrogated or changed the further rebuttable presumption of law that, under the showing here made, the damage occurred while the property was in the possession of the last or delivering carrier, which was dismissed by the court without such presumption having been rebutted.
The respondents firmly maintain that appellant is not permitted under the established practice to complain of the ruling of the court sustaining the motion of its codefendant C. E. S. Truck Lines, Inc. for a directed verdict at the close of plaintiffs' evidence. In fact, respondents decline in their brief to discuss the merits of that issue. In support of their reliance upon such general rule of law, res...
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