The National Bank of Commerce of Kansas City v. Southern Railway Co.
| Decision Date | 11 January 1909 |
| Citation | 115 S.W. 517,135 Mo.App. 74 |
| Parties | THE NATIONAL BANK OF COMMERCE of Kansas City, Respondent, v. SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
AFFIRMED.
Judgment affirmed.
John G Schaich and C. C. Madison for appellant.
(1) Under the undisputed evidence the defendant was not guilty of conversion and the court erred in refusing to direct a verdict for defendant. Shewalter v. Railway, 84 Mo.App. 589; Bank v. Brussoig, 107 Mo.App. 401; Fruit Co. v. Railway, 115 Mo.App. 352; Redmond v. Railway, 90 Mo.App. 68; Russell Grain Co. v Railway, 114 Mo.App. 488; Freeman v. Railway, 118 Mo.App. 526; Shewalter v. Railway, 84 Mo.App 599; Woodrich v. Adams, 11 Vroom. 47; Frome v. Dennis, 45 N. J. L. 516; 2 Cook on Corp. (4 Ed.), sec. 576. (2) The court erred in giving plaintiff's instruction 1. See authorities under point 1. Grain Co. v. Railway, 114 Mo.App. 488. (3) The court erred in giving plaintiff's instruction 2. Freeman v. Railway, 118 Mo.App. 527; Hutchinson on Carriers, sec. 386; Ross v. Railway, 119 Mo.App. 290, and cases cited. (4) The court erred in refusing defendant's instruction A. The defendant company was not required to give notice of the arrival of the goods at destination. This instruction should have been given. Freeman v. Railway, 118 Mo.App. 527; Hutchinson on Carriers, sec. 386; Ross v. Railway, 119 Mo.App. 290. (5) The court erred in refusing defendant's instruction D. Chemical Co. v. Railway, 100 Mo.App. 164. See also cases cited under point 3.
Elijah Robinson and Harris Robinson for respondent.
(1) Under the undisputed evidence in this case and the law applicable thereto, the defendant is liable to plaintiff as for a conversion of the grain in question, and therefore the judgment ought to be affirmed. Grain Co. v. Railway, 176 Mo. 491; Wiggins Ferry Co. v. Railway, 128 Mo. 248; Sparks v. Purdy, 11 Mo. 219; Hall v. Corcoran, 107 Mass. 25; Coles v. Clark, 3 Cush. 399; Stephens v. Elwall, 4 Maule & S. 259; Garland v. Carlisle, 4 Clark & F. 693; Claflin v. Railway, 7 Allen 341; Hawkins v. Hoffman, 6 Hill 586; Bowling v. Nye, 10 Cush. 417; Stephenson v. Hart, 4 Bing. 476. (2) The court committed no error in giving either instruction 1 or instruction 2 at the request of the plaintiff. See authorities above cited. (3) The court committed no error in refusing defendant's instructions. (4) The judgment was unquestionably for the right party, and should be affirmed, regardless of any question as to whether errors were committed in giving or refusing instructions. Bldg. Co. v. Realty Co., 103 Mo.App. 24; Goodson v. Embleton, 106 Mo.App. 77; Bruce v. Wolf, 102 Mo.App. 384; Bowman v. Lickey, 86 Mo.App. 47; Wagner v. Edison Co., 82 Mo.App. 287; Link v. Prufrock, 85 Mo.App. 618; Cass Co. v. Bank, 157 Mo. 133; Jones v. Brownlee, 161 Mo. 258; Moore v. Railway, 176 Mo. 528.
This is a suit for damages for conversion. The Young-Flesch Grain Company of St. Louis sold to the Wayland-Wright Grain Company of Kansas City two cars of corn, to be shipped to Birmingham, Alabama. The cars were delivered by the first-named company to the Mobile & Ohio Railroad Company at St. Louis on February 28, 1903, for transportation. Shipper's order bills of lading were delivered by said Mobile & Ohio Railroad Company to the Young-Flesch Company, on which was the notation, "Notify Wayland-Wright Grain Company." Upon the receipt of the bills of lading, the Young-Flesch Grain Company endorsed and delivered them to the Wayland-Wright Grain Company. The latter had contracted to sell the corn to J. J. Stevenson of Birmingham; and upon receipt of the bills of lading the Wayland-Wright Company drew a draft on Stevenson for the purchase price of the corn, and, having endorsed the bills of lading, attached the same to the draft and delivered both to the plaintiff and received credit for the amount.
Upon the arrival of the corn at Columbus, Mississippi, the Mobile & Ohio Railroad, not having a line of railroad to Birmingham, turned the corn over to the defendant for transportation to Birmingham, viz., one car on March 7th and the other on March 10, 1903. One of the cars of corn arrived at Birmingham on the 11th day of March and the other on the 16th day of March, 1903. On the 26th day of March, Stevenson, who had received an invoice of the corn, wrote to the defendant's freight agent at Birmingham requesting that he send the cars to Bessemer immediately on their arrival at Birmingham, he not knowing at the time that they had then arrived at their destination. Upon this request and without the production of the bills of lading and without any inquiry for authority on the part of Stevenson to ship the corn to Bessemer, defendant reshipped it to that place, without notification to either Stevenson or Wayland-Wright Company that it had done so. Bessemer is a town fourteen miles from Birmingham, but within the switch limits of the latter. The location of the corn was for a time lost sight of, the agent having forgotten that it had been sent to Bessemer. When it was ascertained that the cars of corn were at Bessemer, the district agent of defendant notified Stevenson of the fact, who ordered them to be returned to Birmingham, where they again arrived, one on April 21st and the other on April 23rd. Stevenson refused to receive the corn owing to its damaged condition. The evidence tended to show that the corn had been injured by being kept so long in bulk at Bessemer. Corn kept in cars at that time of the year would, according to experts, in the length of time between the 26th of March and the 26th of April become heated and damaged.
Upon the arrival of the corn at Birmingham, defendant's agent sent a notice to the Wayland-Wright Company at Birmingham. But it was shown that its agent there knew that said company was located at Kansas City and not at Birmingham. This notice was not received and was returned to defendant. When Stevenson refused to accept the corn, defendant sold it and realized the net value from the sale of $ 434.62, which it holds to the order of the owner of the bills of lading. It was shown that had the corn been kept longer, the process of heating would continue until it would have become entirely worthless. The judgment was for the plaintiff, from which defendant appealed.
It is contended that, upon the facts, the defendant was not guilty of conversion and that plaintiff was not entitled to recover. Conversion as defined by Bouvier's Law Dictionary is, "The unlawful turning or applying the personal goods of another to the use of the taker, or of some other person than the owner; or the unlawful destroying or altering their nature."
Our Supreme Court, in applying this, held, "The shipper of goods has the right to designate the consignee, and the carrier is bound to obey the directions of the shipper, or to comply with the terms of the shipment as to the delivery, and if it disobeys then it is liable for a conversion." [Marshall & Michel Grain Co. v. Railway, 176 Mo. 480, 75 S.W. 638.] "A shipper of goods has the right to designate the connecting line over which his goods shall be carried and the first carrier is bound to obey the directions of the shipper in respect thereto and, if he does not do so, he is liable for conversion." [Wiggins Ferry Co. v. Railway, 128 Mo. 224.]
The action of defendant's agent in not notifying Wayland-Wright Grain Company, the consignee, of the arrival of the corn, and in shipping it at the request of Stevenson to Bessemer,...
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