Scott County Mill. Co. v. Thompson

• Decision Date: 05 February 1953
• Docket Number: No. 7052,7052
• Citation: 255 S.W.2d 121
• Parties: SCOTT COUNTY MILLING CO. v. THOMPSON.
• Court: Missouri Court of Appeals

Page 121

255 S.W.2d 121

SCOTT COUNTY MILLING CO. v. THOMPSON.

No. 7052.

Springfield Court of Appeals, Missouri.

Feb. 5, 1953.

Bailey & Craig, Sikeston, for appellant.

Thomas J. Cole, St. Louis, M. Walker Cooper and Allen D. Churchill, Bloomfield, for respondent.

McDOWELL, Judge.

This is an action for damages to a carload of corn while in transit in interstate commerce. The cause was tried in the Circuit Court of Scott County, Missouri. At the close of plaintiff's case defendant's motion for a directed verdict was sustained. Plaintiff appealed.

Plaintiff's petition pleads that it delivered a carload of No. I white corn to defendant railroad on December 12, 1946, to be shipped to A. C. Wassard & Company, Los Angeles, California, and received bill of lading showing destination of shipment and that the consignee was plaintiff; that the corn was in good condition when received by defendant, being No. I white corn as shown by bill of lading.

The petition states that a sight draft for $3,575 was drawn on A. C. Wassard & Company, Los Angeles, and was sent to the Citizen's National Trust and Savings Bank, with bill of lading attached for collection, by the Bank of Sikeston.

It pleads that the shipment was interlined with the Southern Pacific Lines; that on January 14, 1947, a communication was received by plaintiff from the Southern Pacific Lines advising that the shipment was unclaimed and requesting disposition of the car; that the corn was immediately disposed of by plaintiff for $1409.02. Plaintiff pleads that the corn had deteriorated; that upon arrival at destination it was in good condition and had it been delivered in a reasonable time or had plaintiff been advised by the carrier of the refusal of the consignee to accept said car, the corn could have been disposed of for $3,575. Plaintiff pleads that the corn was negligently handled by the carrier in the following particular:

'1. They failed and neglected to transport said car of corn to destination, Los Angeles, California, within a reasonable time;

'2. Permitted an inspection of the car without the consent of consignor and without requiring consignee to produce a bill of lading;

'3. Failed to notify consignor of the refusal of consignee to accept said car of corn within a reasonable time; and

'4. Permitted the corn to deteriorate by failing to notify plaintiff that it was unclaimed or refused; and

'5. Failed to notify consignor that corn was on hand, undelivered.'

And that by reason of such negligence plaintiff was damaged in the sum of $2,155.98; that it filed claim with defendant for that amount, which was by it refused.

Defendant's amended answer admits plaintiff shipped the corn as alleged; admits the shipment was interlined with the Southern Pacific Railroad Company and that the company notified plaintiff on January 14, 1947, that the shipment was unclaimed by the consignee; admits that plaintiff disposed of said car of corn. Admits that the corn was in good condition when it arrived in Los Angeles and when the consignee was notified of the arrival but denies that the corn was of grade No. I and states that it was grade No. 3; denies the corn was negligently handled and denies the damage as claimed by plaintiff but admits plaintiff did file a claim as alleged.

The amended answer pleads that the damage to the corn, if any, was the result of the negligence of plaintiff or its agents, A. C. Wassard & Company and denies all other allegations not specifically admitted. The answer pleads that the inspection of the corn in California, December 30th, was made pursuant to the rules of the Los Angeles Grain Exchange and pursuant to an Act of Congress embodied in Section 76 of Title 7 U.S.C.A., and came within provisions of an original bill of lading; that the damage to the corn, if any, occurred after the corn was placed for delivery, and after the consignee had been notified and while said corn was being warehoused in the railroad car.

The evidence established that plaintiff is engaged in the business of buying and selling grain. December 12, 1946, it delivered to defendant, railroad, at its elevator in Sikeston, Missouri, one car of corn certified No. I white corn, after inspection and grading by G. R. Fisher, a licensed government inspector. The inspector's certificate was incomplete as to total damage, heat damage and foreign materials. The corn was consigned by bill of lading to the order of plaintiff, Los Angeles, California, notify A. C. Wassard & Company, Los Angeles; California.

Freight in the amount of $488.20 was prepaid. The bill of lading was attached to a sight draft in the sum of $3,575, drawn on A. C. Wassard & Company, Los Angeles, California, and sent to Citizen's National Trust & Savings Bank of Los Angeles, for collection; the draft was made payable to order of the Bank of Sikeston, Missouri.

Defendant's lines not extending to Los Angeles, the shipment was interlined with the Southern Pacific Lines. The car arrived December 24, 1946, at destination, Christmas Eve day. A. C. Wassard & Company was notified at 8:00 a. m., December 26th. The car was placed on the grain bulletin at the Los Angeles Grain Exchange and placed on the grain exchange track December 30, 1946. On that date it was inspected by C. S. Mahar, a licensed inspector, Los Angeles, California, and was certified as No. 3 white corn, showing foreign material four per cent.

January 7, 1949, plaintiff received a telegram from A. C. Wassard & Company advising that buyer could not accept corn on account of grade; that an appeal grade was made showing total damage to be 5.7% cracked corn and 4% foreign material. The telegram did not advise that draft was unpaid.

January 13, 1947, the local agent of the Missouri Pacific Railroad advised plaintiff that the car was still unclaimed and that the Southern Pacific was requesting disposition of the corn, which was now certified as hot, mouldy and musty and of distinctly low quality.

January 15, 1947, plaintiff received a communication, by mail, from Southern Pacific Lines advising that the grain was undisposed of. The evidence shows that on January 14, 1947, plaintiff made disposition of the corn, through the Quaker Oats Company of Los Angeles, for $1409.02. Plaintiff was forced to pay $160.73 demurrage and items of transportation expense.

In this opinion we will refer to appellant as plaintiff and respondent as defendant, being the position they occupied in the lower court.

The only question before the court for determination is the sufficiency of plaintiff's evidence to make a submissible case.

Under points and authorities plaintiff's assignment of error No. I states:

'In viewing the propriety of directing a verdict for one of the parties, the evidence of the adverse party must be taken as true, and considered in light of the evidence most favorable to him.'

To support this statement of the law plaintiff cites Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292; Kelley v. Absher, Mo.App., 210 S.W.2d 531; and Miles v. Ozark Bowl, Inc., Mo.App., 250 S.W.2d 849.

This law is so well settled as to need no additional citations of authority.

In determining the sufficiency of the evidence to make a submissible case we must consider the whole evidence and give plaintiff the benefit of all facts and circumstances favorable to it or tending to support its theory of the case with every reasonable inference that may be drawn therefrom.

Plaintiff's assignment of error No. II is as follows:

'A common carrier receiving property for transportation from a point in one state to a point in another state shall issue a receipt or a bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property.'

To support this declaration of law plaintiff cites 49 U.S.C.A. Sec. 20, Par. (11).

In the case at bar the shipment of the grain in question was an interstate shipment and the rule governing defendant's liability must be sought in the 'acts of Congress' and the 'common law as accepted and applied in the federal tribunals.' Singer v. American Express Co., 203 Mo.App. 158, 219 S.W. 662, 663.

Title 49 U.S.C.A. Sec. 20, Par. (11), reads as follows:

'Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State * * * to a point in another State, * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * * *.'

A careful reading of this section of the statute will disclose that plaintiff failed to include that part which says, 'caused by it or by any * * * common carrier, railroad, or transportation company to which such property may be delivered'.

In Singer v. American Express Co., supra, 219 S.W. on page 663, the law is stated:

'* * * The court then asked, What is this liability thus imposed upon the carrier? and answered the question in these words:

"It is a liability to any holder of the bill of lading which the primary carrier is required to issue 'for any loss, damage, or injury to such property caused by it,' or by any connecting carrier to whom the goods are delivered. The suggestion that an absolute liability exists for every loss, damage, or injury, from any and every cause, would be to make such a carrier an absolute insurer, and liable for unavoidable loss or damage, though due to uncontrollable forces. That this was the intent of Congress is not conceivable. To give such emphasis to the words 'any loss or damage' would be to ignore the qualifying words 'caused by it.' The liability thus imposed is limited to 'any loss, injury, or damage caused by it or a succeeding carrier to whom the...