Sutton v. St. Louis & S. F. R. Co.

• Decision Date: 30 September 1911
• Citation: 140 S.W. 76,159 Mo. App. 685
• Court: Missouri Court of Appeals
• Parties: SUTTON v. ST. LOUIS & S. F. R. CO.

140 S.W. 76

159 Mo. App. 685

SUTTON v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

September 30, 1911.

1. REPLEVIN (§ 12) — GROUNDS — RIGHT TO POSSESSION.

The wrongful detention of property is the gist of a replevin action, and it will not lie where defendant has a special property in the goods entitling him to immediate possession, such as a railroad company's right to hold goods for payment of freight.

2. CARRIERS (§ 197) — FREIGHT — CARRIER'S LIEN.

Every common carrier has a lien upon the goods carried for compensation, and may withhold them until freight charges are paid.

3. CARRIERS (§ 26)—FREIGHT—RATES—INTERSTATE SHIPMENTS—CONTRACTING FOR RATES.

Where a freight rate has been duly fixed by the Interstate Commerce Commission and posted by a railroad company, a lesser rate contracted for between the shipper and a company, whether intentional or through mistake, is not binding, and the company can hold the freight until the legal rate is paid.

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

Action by W. A. Sutton against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter judgment for defendant.

W. F. Evans, Moses Whybark, and A. P. Stewart, for appellant. H. E. Doerner, for respondent.

NORTONI, J.

This is a suit in replevin for a lot of household goods. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff shipped his household goods and a cow in one car, under rating as an "emigrant outfit," from Patton, Ill., over the Big Four Railroad, the St. Louis & Southwestern Railroad, and defendant, St. Louis & San Francisco Railroad, to Steele, Mo. The car arrived at Steele, Mo., in due time, and defendant permitted plaintiff to remove the cow therefrom, but retained the household goods on account of a balance of $31.20 freight charges, which it asserted were unpaid. Plaintiff declined to pay this amount, because, as it is said, he paid the entire freight ($33.60) to the agent of the Big Four Railroad at Patton, Ill., for the through transportation of the car to Steele, Mo. After contending over the matter about two weeks, plaintiff instituted this suit in replevin for the household goods, and prevailed at the trial. The proof is uncontradicted on both sides, and the question presented thereby is not difficult of solution, for it has several times been determined by this and other courts.

By plaintiff it is shown that he paid the agent of the Big Four Railroad $33.60 for transportation of the car over the three railroads, the Big Four, via Cairo, Ill., the St. Louis & Southwestern, via Lilburn, Mo., and defendant, St. Louis & San Francisco, to Steele, Mo., but upon the car arriving at Cairo, Ill., the St. Louis & Southwestern Railroad Company declined to receive it under this arrangement, as the freight charged was insufficient to compensate all of the carriers in accordance with the tariff rates approved by the Interstate Commerce Commission, and this was an interstate shipment. It seems a mistake had been made by the Big Four agent at Patton, and that when the car reached Cairo, Ill., all of the amount charged, save $6.80, had been consumed. Upon being informed at Cairo, the St. Louis & Southwestern Railroad would not receive the car, plaintiff surrendered his shipping...