Strawn v. Missouri, K. & T. Ry. Co.

• Decision Date: 18 June 1906
• Citation: 120 Mo. App. 135,96 S.W. 488
• Parties: STRAWN v. MISSOURI, K. & T. RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 488

120 Mo. App. 135

STRAWN v. MISSOURI, K. & T. RY. CO.

Kansas City Court of Appeals. Missouri.

June 18, 1906.

Rehearing Denied October 1, 1906.

1. EVIDENCE—PAROL EVIDENCE — CONTRADICTION OF RECEIPT.

A receipt for goods delivered by a carrier is a non-contractual admission, and is open to explanation or contradiction by parol, or other competent evidence.

2. CARRIERS—LOSS OF GOODS—EVIDENCE.

In an action against a carrier for alleged loss of goods, evidence held sufficient to contradict a receipt given by the consignee's agent for the goods, and to sustain a finding that one case of the shipment was never delivered by the carrier.

Error to Circuit Court, Boone County; A. H. Waller, Judge.

Action by J. W. Strawn against the Missouri, Kansas & Texas Railway Company. From

a judgment for plaintiff, defendant brings error. Affirmed.

Geo. P. B. Jackson, for plaintiff in error. N. T. Gentry, for defendant in error.

JOHNSON, J.

Plaintiff, a merchant at Columbia, sues to recover the value of a case of dry goods which he claims defendant as a common carrier received for hire for transportation and delivery to him at Columbia, and failed to deliver. A jury was waived, and the court sitting as a jury heard the evidence, and gave plaintiff judgment for the value of the goods. Defendant appealed.

Plaintiff's ownership of the goods, their description and value, their shipment at New York consigned to plaintiff, and their delivery to defendant in the course of transportation, are all conceded facts. The controversy between the parties relates to the fact of the delivery to plaintiff at Columbia. It appears that the shipment received by defendant consisted of six cases of dry goods consigned to plaintiff. Defendant's records show that all of them were carried to its station at Columbia, and then delivered together to plaintiff. In addition to this evidence, defendant produced a receipt for the six cases including the one in dispute, signed by D. E. Hulett, and in a stipulation made by the parties it was agreed that "at the time of said shipment and its delivery at Columbia Hulett was a drayman and transferman engaged in business at Columbia, and that it was then the custom of said Hulett acting under authority from plaintiff and other merchants to receipt for cases of goods shipped over defendant's railroad, and take the same in said Hulett's transfer wagons to different dry goods merchants in Columbia, and receive pay from said merchants for said services, and to pay the freight charges to the railroad company." The course of business here outlined was followed in the present instance. Hulett receipted to defendant for the cases, collected the freight charges from plaintiff, and paid them to defendant. After the loss of the case was discovered, plaintiff notified defendant, and a "tracer" was sent over the line of transportation, and the history of the shipment as recorded by the carriers that handled it tended to verify the fact of the delivery of the case in question to Hulett. It had not been misdelivered at any other station, nor was it in the possession of any of the carriers.

Counsel for plaintiff admit that Hulett was his agent authorized to receive and receipt for the case and that if it was in fact delivered to Hulett "that was just as valid as a delivery to the owner himself," and further they concede that the receipt given by Hulett "is prima facie evidence that such delivery was made." With the case in this posture, obviously the burden is on plaintiff to overcome the prima facie proof of delivery made by defendant in the production of the receipt signed by the agent of plaintiff. This burden plaintiff assumed, and, in attempting to meet it, introduced evidence tending to establish the following facts: Hulett did not attend in person to the hauling of the cases to plaintiff's store. He called at the station, as was his custom, and learned that merchandise consigned to plaintiff had arrived. He then directed the driver of one of his wagons to haul the goods. The driver drove to the station, and loaded into his wagon all of the cases delivered to him by defendant's agent for delivery to plaintiff, hauled them to the store of the latter, placed them on the sidewalk in front of the principal entrance to the store, and drove away. Some time after this, Hulett called at the station, and signed the receipt. The missing case weighed about 300 pounds and in dimensions was 3 feet each way. The fact that the case was lost was not discovered by plaintiff until some 15 days had passed after the hauling of the other cases. The driver then could not remember how many cases he hauled on that occasion, but was positive that he delivered to plaintiff all he received from defendant. Plaintiff produced the invoice of the goods contained in the missing case, and offered the testimony of himself and of each of his clerks to show that the goods therein described were not received in the store. Defendant criticises this evidence saying that it is not sufficiently positive to offer any evidentiary opposition to the written receipt.

These are examples of the testimony defendant asserts is lacking in probative force. From the testimony of the clerk, who un packed the cases delivered at the store: Q. "All you know about the matter is that some embroideries that were supposed to have been ordered had not arrived at your house?" A. "Yes, sir." Q. "And you think they never did get there?" A. "Not to my knowledge." From the testimony of one of the sales clerks: Q. "State if the goods in these three bills ever arrived at your store." A. "Not to my knowledge. They never were in the stock. I kept that...