Scott County Milling Co. v. St. Louis, I. M. & S. R. Co.

• Decision Date: 30 April 1907
• Citation: 104 S.W. 924,127 Mo. App. 80
• Court: Missouri Court of Appeals
• Parties: SCOTT COUNTY MILLING CO. v. ST. LOUIS, I. M. & S. R. CO.

104 S.W. 924

127 Mo. A. 80

SCOTT COUNTY MILLING CO. v. ST. LOUIS, I. M. & S. R. CO.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

Rehearing Denied November 5, 1907.

1. CARRIERS — CONNECTING LINES — DESTRUCTION OF FREIGHT WITHOUT NEGLIGENCE.

Rev. St. 1899, § 5222 [Ann. St. 1906, p. 2718], providing that when property is received by a carrier for transportation, or when a carrier issues a bill of lading, it shall be liable for loss of the property caused by its negligence or that of another carrier to which the property is delivered or over whose line it may pass, has no application to a case where property while in the possession of a connecting carrier is destroyed by fire, without negligence of either carrier.

2. SAME — CONTRACT FOR THROUGH CARRIAGE.

A bill of lading issued by the initial carrier, which collects the charges for the entire distance, reciting neither the point where the freight is received nor its destination, nor that such carrier agrees to carry only to the end of its own line, and which, while attempting to restrict its liability by providing that it shall be liable only for losses occurring while the property is in its actual custody and on its road, provides that its responsibility as a carrier terminates on arrival of the goods at the place of delivery, and which states that the property is consigned to the shipper with a direction to notify H. at Y., the point of destination, is a contract for through carriage, making the initial carrier liable for loss of the property by fire, while in the possession of the connecting carrier, in the absence of a valid provision to the contrary.

3. SAME — EXEMPTIONS FROM LIABILITY — CONTRACTS.

Provision in a bill of lading excepting the carrier from loss of the property by fire is valid only in case a reduced rate or other consideration is allowed the shipper therefor.

4. SAME.

Provision in a bill of lading that the carrier's liability as such terminates on arrival of the property at the place of delivery, without which such liability continues till there has been reasonable time for removal of the property, requires a consideration to make it valid.

5. SAME — REASONABLE TIME FOR REMOVING FREIGHT.

Where a car was not set out for removal of the freight till 6 o'clock in the evening of a winter day, and it was destroyed by fire eight hours later, it cannot be said the consignee had had reasonable time for removal of the property, so as to relieve the carrier of liability for its destruction.

6. SAME — NOTICE OF ARRIVAL OF FREIGHT.

Where freight does not arrive at its destination on time, for this reason, as well as because the bill of lading provides for notice, notice of its being ready for delivery is necessary to relieve the carrier of liability for its destruction by fire, though there has been a reasonable time for its removal after it was ready therefor.

7. TRIAL — PEREMPTORY INSTRUCTION — CONFLICTING EVIDENCE.

A peremptory instruction that plaintiff's failure to give a notice of a claim of damages, within a certain time after it was informed of a certain matter, precluded recovery, is properly refused; the evidence being conflicting as to whether it was informed of such matter.

8. CARRIERS — LOSS OF FREIGHT — NOTICE OF CLAIM.

Though a bill of lading provides that claim for damages must be reported by the consignee to the delivering line within 36 hours after the consignee has been notified of the arrival of the freight, otherwise there shall be no liability, failure to give the notice does not prevent recovery, where the agent of the delivering company immediately knew about the destruction of the property while in its possession, and notice would have done no good.

Appeal from Circuit Court, Mississippi County; Henry C. Riley, Judge.

Action by the Scott County Milling Company against the St. Louis, Iron Mountain & Southern Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Jas. F. Green, for appellant. W. C. Russell, for respondent.

GOODE, J.

This action was brought to recover the value of a car load of flour shipped by the respondent, or its predecessor, the Bowman-Mathews Milling Company, from Sikeston, Mo., to Yazoo City, Miss., and destroyed by fire at the latter point while still in the custody of the appellant as a common carrier, it is alleged. Respondent, the Scott County Milling Company, a corporation, was formed May 20, 1904, by the consolidation of two other milling companies, the Greer-Ebert and the Bowman-Mathews. The flour was delivered to the appellant by the Bowman-Mathews Milling Company on January 12, 1904, for transportation to Yazoo City, consigned to the order of the shipper, with a direction to appellant to notify the W. R. Hyatt Company, at Yazoo. A draft was drawn by the shipping company on the company to be notified, attached to the bill of lading and sent for collection to a bank at Yazoo. On payment of the draft the Hyatt Company would become entitled to the flour. The bill of lading was issued by appellant to the Bowman-Mathews Milling Company and will be copied, omitting portions not material to this controversy:

                    "The Missouri Pacific Railway Company
                       Leased, Operated and Independent
                                    Lines
                     "____ Division of ____ Railway
                                      "Jan. 12, 1904
                

"Received from Bowman-Mathews Milling Co., the following property, in apparent good order, marked and numbered as per margin, to be transported from ____ to ____ and delivered to the consignee, or a connecting common carrier. The property aforesaid may pass through the custody of several carriers before reaching its destination, and it is understood as a part of the consideration, for which the said property is received, that the exceptions from liability made by such carriers respectively shall operate in the carriage by them respectively of such property, as though herein inserted at length; and especially that neither of said carriers, or either or any of them, or this company, shall be liable for losses, etc. * * * And it is further especially understood, that for all loss or damage occurring in the transit of said property, the legal remedy shall be against the particular carrier only in whose custody the said property may actually be at the time of the happening thereof — it being understood that the Missouri Pacific Railway Company, Leased, Operated and Independent Lines, in receiving the said property to be forwarded as aforesaid, assumes no other responsibility for its safety or safe carriage than may be incurred on its own road. * * * Claims for damages must be reported by consignee in writing to the delivering line within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery. If such notice is not then given, neither this company, nor any of the connecting or intermediate carriers shall be liable. In the event of the loss of property under the provisions of this agreement, the value, or cost of the same at the point of shipment shall govern the settlement.

"Notice. The responsibility of this company as a common carrier terminates upon arrival of the property at station or place of delivery. Free storage will be given for forty-eight hours thereafter (exclusive of Sundays and legal holidays) at the risk of the owner; if not removed at the expiration of that time the property will, at the option of the carrier, either be removed and stored in a public warehouse, at owner's cost and risk, or will be retained in the carrier's possession, as warehouseman, subject to warehouse charges. * * *

"Notice. In accepting this contract the shipper or other agent of the owner of the property carried, expressly accepts and agrees to all its stipulations and conditions. Consigned to Sh/O Ntf'y W. R. Hyatt Co., at Yazoo City, Miss. Weight and classification subject to correction.

                Marked      List of Articles        Weight
                  MoP    150  Brls flawless flour   30,000
                21359    100/2 "      "       "     10,000
                                                    ______
                                                    40,000
                

                  "E. St. L. paid in 6¢ per cwt
                                       "T. E. Dover, Agt."
                

Indorsed: "Bowman-Mathews Milling Co., per L. B. Bowman."

Appellant's line ran no further than Memphis, to which point it carried the flour, and there delivered it to the Mississippi River & Yazoo Valley Railroad Company, a branch line of the Illinois Central Railway Company, to be carried to destination, which was done. The time consumed in transit from Sikeston to Yazoo City was longer than usual. The car arrived at the latter point at 9:10 a. m. January 21, 1904, and was placed on what is known as the "house track," "before 6 p. m. of January 22, 1904," the agent of the Yazoo Company swore. He also swore notice was given on January 22d to the W. R. Hyatt Company that the car had arrived and was ready for delivery. It was set on the house track in order that it might be unloaded into the Hyatt Company's warehouse, but the railway company's agent could not tell when it was set there more definitely than as just stated. The warehouse was consumed by fire about 2 o'clock a. m. January 23d; that is, about eight hours after the latest moment at which the car may have been placed on the house track for unloading. The flames spread from the warehouse to the car and destroyed the flour. It should be stated that the bill of lading did not mention the rate to be charged, nor...