The Kansas City Transfer Co. v. Neiswanger
| Decision Date | 25 May 1885 |
| Citation | 18 Mo.App. 103 |
| Parties | THE KANSAS CITY TRANSFER Co., Respondent, v. D. G. AND G. G. NEISWANGER, Appellants. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, J.
Reversed and remanded.
Statement of case by the court.
The plaintiff, to sustain the issues upon its part, offered evidence tending to prove the following particular facts and issues, to-wit: That plaintiff is a corporation, and a common carrier of freight in the City of Kansas; that on the 12th day of May, 1881, the plaintiff, in the course of its business, received from the Missouri Pacific Railway company at its freight depot and warehouse in Kansas City, Mo., three top buggies, three sets of wheels, three pairs of shafts, and four sulkies, the property of the defendants, and directed to them at Kansas City, Mo., which the Missouri Pacific Railway company, in the course of its business, had received at St Louis and carried to Kansas City; that said property was received by the plaintiff at the Grand avenue depot of the Missouri Pacific Railway company; that the same was carefully loaded into wagons and carried with care to the defendants' place of business at the corner of Eighth and Walnut streets in the City of Kansas, and there delivered to them in the same condition that it was in when received from the Missouri Pacific Railway company; that plaintiffs' driver of its said wagon was a careful and competent teamster, and that he took from the defendants a receipt for said property, stating that the same had been received by the defendants in good order and condition; that two days after plaintiff received said property from the Missouri Pacific Railway company, to-wit: on May 14, 1881, in accordance with its general custom and contract with the Missouri Pacific Railway company, paid said railway the sum of $41.03, being the amount of said railway company's freight and back charges against said property, and that $1.50 is a reasonable charge for carrying said property by the plaintiff from the railway company's depot to defendants' place of business, and that said sums of $41.03 and $1.50 are wholly unpaid; that it was customary for the plaintiff, as a common carrier to pay the carrier, from which they received goods the freight and back charges, and collect the amount from the consignees, and for the consignees to put in their claims against the carriers for reclamation and damages.
The defendants, to sustain the issues upon their part, offered evidence tending to prove the following particular issues and facts, to-wit: That on or about May 1, 1881, Messrs Toomey & Sons, of Canal Dover, Ohio, delivered said property in good order to the .......... railway company, at that place shipped and directed to the defendants at Kansas City, Missouri, but the bill of lading did not show over the lines of what carriers said property was to be shipped; that said bill of lading provided that said railway company should not be liable for damage done said property while in the custody of any other person or carrier; that said property was carried by said railway company from Canal Dover to Cincinnati, Ohio, and there delivered to the Ohio and Mississippi Railway company, by which company said property was carried to the City of St. Louis, and there delivered to the Missouri Pacific Railway company, and by which company said property was carried to Kansas City, where it arrived about 1 o'clock a. m., May 10, 1881; that said property was, on May 11, 1881, unloaded and put away in the warehouse or depot of said Missouri Pacific Railway company, where it remained until plaintiff took possession of it on May 12, 1881; that when said property was delivered to defendants at their place of business it had been injured and damaged to the extent of $30.65, but the injury and damage were not observed by the defendants until after they had signed a receipt for the same, stating that said property had been received in good order and condition; that for some time prior to February 1, 1881, the plaintiff had been in the habit of hauling freight belonging to the defendants from the depots in Kansas City to their place of business; that about February 1, 1881, the defendants notified the plaintiff's collector, whose business it was to collect the accounts of the plaintiff company, that the plaintiff would be no longer authorized to haul defendants' freight and not to haul any freight belonging to or consigned to the defendants any more; that all freight consigned to defendants arriving at Kansas City after February 1, 1881, was hauled by themselves to their place of business from the depots; and no freight consigned to them arriving after February 1, 1881, has been hauled by the plaintiff except the hauling of said property on May 12, 1881; and that defendants, on May 12, 1881, upon discovering the injury and damage to said property, immediately notified plaintiff thereof.
And the plaintiff, to further sustain the issues on its part, offered evidence tending to prove the following facts and issues, to-wit: That the said bill of lading issued by the .......... railway company at Canal Dover, Ohio, had written across the face thereof the letters " O. R.," which means " owner's risk," and that Louis Dragon, the plaintiff's superintendent, who had charge of the receipt and delivery of freight by plaintiff, was never notified by its said collector not to haul any more freight for defendants, and no such notice ever came to the knowledge of said superintendent.
This was all the evidence offered. Whereupon the court gave the following instruction, among others, for plaintiff:
1. The court declares the law to be, that if it appear from the evidence that plaintiff is a common carrier of freight in the City of Kansas, and in the course of its business received from the Missouri Pacific Railway company the three top buggies, three sets wheels, three pairs shafts, and four sulkies for delivery to defendants, that plaintiff paid the Missouri Pacific Railway company, in the ordinary and usual course of business, the amount of its freight and back charges on said property, that plaintiff carried said property to defendants' stable and delivered the same to defendants in the same condition in which it received the same from the Missouri Pacific Railway company, and took defendants' receipt therefor, in good order, then plaintiff is entitled to recover the amount of freight and charges paid by it to said railway company, together with its own charges for carrying the same to defendants' stable, if the evidence showed such charges to be reasonable.
The court refused the following instructions offered by defendants:
7. The court declares the law to be, that when defendants' buggies and other property reached the depot of the Missouri Pacific Railway company at Kansas City, and were unloaded by said railway company into its warehouse at Kansas City, the contract for the carriage of said buggies and other property referred to in the evidence, was, after holding the same for a reasonable time for the defendants to take them away, fully executed and performed, and said contract conferred on said Missouri Pacific Railway company no authority, either express or implied, to deliver said buggies and other property into the possession of the plaintiff, and conferred on the plaintiff no authority, either express or implied, to receive the same or pay the accrued charges thereon. The plaintiff was not in the line of transportation contemplated by said contract, and before it can recover for its services and the accrued charges paid by it, it must show a request from defendants to perform said services and make said payment.
8. The court declares the law to be, that the rule which permits common carriers in the line of transportation of goods consigned from one point to another, where no contract to the contrary is violated, to receive goods so consigned from a previous carrier and pay accrued charges thereon, and carry the same to their destination and there recover from the owner the amount of such accrued charges, together with its own compensation for services, does not apply to the plaintiff under the circumstances detailed in evidence in this case; the buggies and other property had reached their destination before plaintiff had any connection with them, and before plaintiff can recover for its payment of accrued charges or for its services the burden is on it to prove a request from defendants to make such payment and render such services, and no such proof having been made, the finding must be for defendants.
9. The court declares the law to be, that plaintiff, not being in the line of transportation of the goods consigned in this case, is not entitled to the benefit of rules applying to connecting carriers in the line of transportation, but its payment to the Missouri Pacific Railway company stands upon the same footing as if said payment had been made by any other person not a common carrier, and unless said payment was made at the request of the defendants, the plaintiff can not recover.
The court of its own motion, gave the following instruction: 1. The court declares the law to be, that if it appear from the evidence that in the month of February, 1881, the defendants notified plaintiff not to haul any more of their freight from the depots at Kansas City, and that plaintiff, after the giving of the said notice, did not receive or haul any more of defendants' freight until the hauling on May 12, 1881 sued for in this action, but that defendants between said time hauled their own freight from the depots in Kansas City, then plaintiff was a wrong-doer in receiving said buggies and other property of defendants from the railroad company, and it...
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