Shannon v. Hines

• Decision Date: 16 December 1920
• Citation: 226 S.W. 283,205 Mo.App. 629
• Parties: ROSCOE SHANNON, Respondent, v. WALKER D. HINES, Director-General of Railroads, Appellant
• Court: Missouri Court of Appeals

226 S.W. 283

205 Mo.App. 629

ROSCOE SHANNON, Respondent, v. WALKER D. HINES, Director-General of Railroads, Appellant

Court of Appeals of Missouri, Springfield

December 16, 1920

Appeal from Jasper County Circuit Court.--Hon. Allen McReynolds Judge.

AFFIRMED.

J. W Jamison and A. E. Spencer for appellant.

(1) "It is a condition of the validity of a bailment as in the case of contracts generally, that it shall not be made in a manner, nor for an object, forbidden by statute or otherwise contrary to law or to public policy." 6 C. J 1106, sec. 33. In 10 C. J. 282, sec. 401, the rule is stated as follows: ". . . according to the weight of authority a common carrier is not liable if the goods, without its fault, becomes obnoxious, under a statute or regulation promulgated under he police power of the State and are seized or destroyed by its authority. And if the officer has authority to seize the goods, the carrier is protected, although the officer thereafter destroys the goods, his act of destroying the goods is his own act with which the carrier has nothing to do. And the fact that the statute under which the goods are seized is unconstitutional will not render the carrier liable, if, at the time of the seizure, the statute had not been judicially declared unconstitutional." (2) Sec. 240 of the U. S. Crim. Code (10 U. S. Comp. Stat. 1916, sec. 10410, p. 12852) provides that, "Whoever shall knowingly ship, or cause to be shipped, from one State . . . into any other State . . . any baggage or package containing any spirituous . . . or other intoxicating liquor of any kind, unless such package be so labeled on the outside cover as to substantially show the name of the consignee, the nature of its contents and the quality contained therein, shall be fined not more than five thousand dollars; and such liquor shall be forfeited to the United States, and may be seized and condemned by legal proceedings as though provided by law in the seizure and forfeiture of property imported into the United States contrary to law." (a) Sec. 8739, 8 U. S. Comp. Stat. 1916, p. 9538, provides that: "The shipment or transportation in any manner or by any means whatsoever, of any spirituous . . . or other intoxicating liquor of any kind, from one State . . . into any other State . . . which said spirituous . . . or other intoxicating liquor, is intended, by any person interested therein, to be received, possessed, sold or in any manner used either in the original package, or otherwise, in violation of any law of such State, . . . is hereby prohibited. " (b) The Laws of Texas (4 Called Session 35th Legislature, p. 37) introduced in evidence, provides that the transportation within or importation into the State by any railroad, carrier, automobile, by private conveyance or otherwise . . . shall be unlawful. Also, that any person found guilty of violating any of the provisions of such act shall be deemed guilty of a felony and punished as provided. (c) "This is on the principle that the contract of the carrier is always subject to the implied condition that it may lawfully comply with its terms, and, if its performance subsequently becomes unlawful without its fault, it is not required to violate the law of the jurisdiction to complete its undertaking. Atkinson v. Ritchie, 10 East, 530, reprint 877. To same effect, Wells v. Maine, S. S. Co., 29. F. Cas. No. 17401, 4 Cliff. 228. The reason for such a rule it at once apparent; for to hold that a railroad company is bound to resist the lawful authority in protecting the goods of a shipper would be to lay down a doctrine dangerously approaching anarchy. Southern R. Co. v. Heymann, 118 Ga. 616, 622, 45 S.E. 491." (d) In Brick v. Atlantic Coast Line R. Co., 145 N. Car. 203, 58 S.E. 1073, the court states the rule as follows: "Where the baggage is not personal baggage, or, if such, when it is not the personal baggage of the passenger, it is a fraud on the carrier, unless that fact is made known and the baggage is notwithstanding accepted for carriage. Unless this is done there is no contract, and the liability of the carrier is that a gratuitous bailee, responsible only for gross negligence or willful injury. 1 Fetter, Carrier of Passengers, sec. 607, p. 1470c, 3 A. & E. Ency. 533. In such cases, negligence must be clearly shown and cannot be presumed by the mere fact of loss or injury, as in the ordinary case of loss of, or injury to, the personal baggage of a passenger, 3 A. & E. Ency. (2 Ed.), 542; Young v. Railroad, 116 N.C. 936, 21 S.E. 177." (e) In Toledo, etc. R. Co., v. Bowler, 83 Ohio St. 274, 58 N.E. 813, discussing this question, the court said: "The company may rely upon the implied representation that whatever is offered by the passenger as baggage goes under the contract to carry. If it is not, it does not. Stimson v. Railroad, 98 Mass. 83" . . . "There can be no rule of public policy requiring a carrier of passengers to be responsible for the value of property injured by ordinary negligence while in his possession, where that possession has been had, not by reason of any contract, but by fraudulent concealment and misrepresentations. In the affairs of life, negligence is less pernicious than deceit. Cheating cannot have a preferred claim upon justice, even as against negligence. Taking it by and large, a careless person is less dangerous to his fellows than a cheat; and it is not wise to carry the condemnation of negligence to the point of rewarding fraudulent concealment, especially where the result would work a gross injustice. Such concealment, in a case like the one at bar, enhances the risk of the carrier without his knowledge. It exposes him to the hazard of incurring a different liability than that he has agreed to assume--a liabilty to which there is practically no limit."

Frank H. Lee and H. L. Shannon for respondent.

No brief by respondent.--Reporter.

STURGIS, P. J. Farrington and Bradley, JJ., concur.

OPINION

STURGIS, P. J.

This suit is against the Director-General of Railroads in control of the Missouri, Kansas & Texas Railroad and we will speak of that railroad as defendant. By his petition plaintiff alleges that he delivered to the defendant a certain trunk and its contents to be transported as his personal baggage from Joplin, Missouri, to Wichita Falls, Texas, and that defendant accepted same by issuing a check therefor; that defendant failed to transport or deliver same to him at Wichita Falls or elsewhere but on the contrary delivered same to some person at Joplin whereby plaintiff lost his trunk and contents. The evidence proves these facts and more particularly that plaintiff purchased a ticket and became a passenger on one of defendant's trains from Joplin to Wichita Falls and that this trunk was presented by him and checked in the usual way as his personal baggage without any further charge; that the person to whom the trunk was delivered at Joplin was a United States officer connected with the Internal Revenue Service and the delivery to him was more in the nature of a seizure of same on his discovery that the trunk contained, in addition to plaintiff's clothing and other proper personal baggage, eight quarts of whiskey. The suit was commenced in a justice court and the defenses are gathered from the evidence instead of any pleading. The case reached the circuit court on appeal and was there tried by a special judge without a jury resulting in a judgment for plaintiff.

The defendant showed at least two good reasons why it could not be held for failure to transport and deliver at destination the trunk containing the whiskey. The plaintiff did not disclose to defendant's agent checking this trunk that same contained whiskey and this was discovered by the revenue officer opening up the trunk in defendant's baggage room a short time before the train left on which plaintiff and his trunk were to be carried. Defendant's agent was not acquainted with plaintiff and neither he nor the revenue officer had any means of ascertaining to what particular passenger this trunk belonged. The shipment of this trunk containing whiskey from Missouri to Texas would have been in plain violation of section 240 of the United States Criminal Code (10 U.S. Comp. Stat., 1916, sec. 10410, p. 12852) which provides that, "Whoever shall knowingly ship, or cause to be shipped, from one State . . . into any other State . any package of or package containing any spirituous . . . or other intoxicating liquor of...