State ex rel. Atchison, T. & S. F. Ry. Co. v. Trimble

• Decision Date: 31 December 1923
• Docket Number: No. 24816.,24816.
• Citation: 302 Mo. 8,257 S.W. 104
• Court: Missouri Supreme Court
• Parties: STATE ex rel. ATCHISON, T. & S. F. RY. CO. v. TRIMBLE et al., Judges.

257 S.W. 104

302 Mo. 8

STATE ex rel. ATCHISON, T. & S. F. RY. CO. v. TRIMBLE et al., Judges.

No. 24816.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Certiorari to Kansas City Court of Appeals.

Certiorari by the State, on the relation of the Atchison, Topeka & Santa Fe Railway Company, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, to review a majority opinion of respondents in a suit against relator. Opinion quashed in part.

Cyrus Crane, Gee. J. Mersereau, John H. Lathrop, Richard S. Righter and Winston H. Woodson, all of Kansas City, for relator.

Brown Harris, of Kansas City, for respondents.

SMALL, C.

The relator claims that the majority opinion of the Kansas City Court of Appeals, in a suit against relator, railroad company and a warehouse company for damages for failure to deliver plaintiff's automobile placed with said defendant for shipment, was erroneous, because the petition on which the case was tried was based on a single cause of action, alleging specific acts of negligence, whereas, the plaintiff recovered, without being required to prove any such specific acts of negligence, on the theory that said petition contained two counts, one against defendant on the contract of shipment, as an insurer, and the other for negligently failing to deliver the automobile; that the majority of the opinion is in conflict with numerous opinions of this court, which are stated in the relator's application and brief. The issues are sharply drawn and clearly presented by the majority opinion of the Court of Appeals on motion for rehearing and the dissenting opinion, which are as follows:

Majority Opinion of Bland, J., on Rehearing.

"After going over this case again we have decided that we arrived at the correct conclusion on the original submission of the cause as shown by the foregoing opinion. That language of the petition charging negligence was not changed at the close of the testimony, when plaintiff dismissed as to the storage company and amended his petition by interlineation so as to definitely state a cause of action against the railway company upon the contract of bailment (the insurer theory). So the petition, so far as the negligence alleged, remained the same. In fairness to both parties, we shall state the material parts of the petition as it stood both before and after the amendment. The amendment is in italics.

"`That on or about October 26, 1920, plaintiff delivered all of said personal property (the automobile and equipment thereon) to defendant A. B. C. Fireproof Warehouse Company, at Kansas City, Mo., to be forwarded from Kansas City, Mo., to Los Angeles, Cal. That the said defendant A. B. C. Fireproof Warehouse Company, on or about said date, for hire accepted said personal property and undertook to deliver same to defendant Atchison, Topeka & Santa Fe Railway Company, at Kansas City, Mo., to be carried by said railway company from Kansas City, Mo., to Los Angeles, Cal. That the said defendant, Atchison, Topeka & Santa Fe Railway Company, as a common carrier for hire, on or about said date, accepted said personal property, and undertook to carry same from Kansas City, Mo., to Los Angeles, Cal., and to redeliver same to plaintiff, or his agent, at Los Angeles, Cal. That defendant Atchison, Topeka & Santa Fé Railway Company has never redelivered said personal property or any part thereof to plaintiff or his agent at Los Angeles, Cal., or at any other place. That on or about date aforesaid the defendants placed the said personal property in an inclosed freight car of the defendant railway company at Kansas City, Mo., along with other property, including other automobiles and equipment. That thereafter defendants, their agents and employees, entered said freight car for the purpose of preparing said property for shipment, and negligently carried a lighted lantern in said freight car, and negligently undertook to drain and remove the gasoline from one or more of the automobiles in said car while said lighted lantern was near by, when they knew, or by the exercise of ordinary care should reasonably have anticipated, that there was imminent danger of said gasoline and the gas, vapor, and fumes therefrom becoming ignited by the flame in said lantern, and imminent danger of a dangerous explosion and fire directly resulting therefrom which would cause damages to the property in said car, including plaintiff's property. That, while defendants and their agents and employees were in the act of draining and removing the gasoline from one or more of said automobiles with said lighted lantern near by, as aforesaid, said gasoline and the gas, vapor, and fumes therefrom became ignited by the flames in said lighted lantern, thereby directly causing an explosion and fire which directly caused a total loss, destruction, and damage to plaintiff's said property. That all of said loss and damage was directly caused by the aforesaid negligence, of defendants, their agents and employees. That the aforesaid negligent acts of said agents and employees were performed by them while they were engaged in, upon, and about the business of the defendants, and within the line and scope of their respective authority and employment as the agents and employees of the respective defendants. That the value of plaintiff's said property at the time and place of said loss was $3,000. That by reason of the facts aforesaid, plaintiff has been damaged in the sum of $3,000, for which sum, with the costs of said suit, plaintiff prays judgment against defendants.'

"At the outset, let us say that it is not easy to judge what facts or theories were alleged in the petition, either before or after the amendment, but the best we can make of it is this: The original petition alleged delivery of the automobile by plaintiff to the storage company with authority to deliver it to the defendant railway company to be carried to Los Angeles; that it was delivered to the railway company, which contracted to carry it to Los Angeles, and to there redeliver it to plaintiff; that after the automobile had been delivered to the railway company the agents of both defendants entered the freight car `for the purpose of preparing said' automobile `for shipment,' and negligently caused its destruction by fire. In the original petition there was no allegation that the storage company was acting within the course of its employment as agent of plaintiff in preparing the automobile for shipment after it had been delivered to defendant, but only; that the agents or " employees of the storage company were acting for the latter when the automobile was negligently destroyed, thereby attempting to allege facts showing the storage company was liable to plaintiff for the acts of negligence of its employees. There is no agency, as between plaintiff and the storage company, alleged as existing after the delivery of the automobile by the storage company to the railway company. There is nothing inconsistent with the idea that there can be delivery of property to a carrier for shipment, so as to create the relationship of shipper and carrier, where the loading is to be performed by the carrier, and not by the shipper or his agent. 1 Hutchinson on Carriers (3d Ed.) pp. 109, 110, 117. We cannot construe the petition, either before us or after its amendment, to first allege that there was a delivery of the automobile to the carrier for shipment followed by allegations of facts showing no delivery, when the car was destroyed. Such a construction of the language of the petition would make its allegations self-destructive and would be a strained construction. Neither does the original petition directly allege that after the delivery to the carrier plaintiff, through his agent, the storage company, duly authorized, was preparing the automobile for shipment at the time it was burned.

"What change, then, was made when plaintiff amended his petition at the end of the evidence? Defendant urges that the petition, even after the amendment made at the close of the testimony, does not state a cause of action on the contract of shipment (the insurer theory). Plaintiff inserted those amendatory words immediately after the allegations of delivery to the carrier found in the original petition. Now, it is apparent that plaintiff intended, when he made this amendment, to allege a cause of action on the...