"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, Missouri, to be forwarded from Kansas City, Missouri
to Los Angeles, California.
"'That
the said defendant A. B. C. Fireproof Warehouse Company on or
about said date, for hire, accepted said personal property
and undertood to deliver same to defendant Atchison, Topeka & Santa Fe Railway Company, at Kansas City, Missouri, to be
carried by said Railway Company from Kansas City, Missouri,
to Los Angeles, California. 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, Missouri, to Los Angeles, California, and to redeliver
same to plaintiff, or his agent, at Los Angeles, California.
That defendant Atchison. Topeka & Santa Fe Railway
Company, has never re-delivered said personal property or
any part thereof to plaintiff or his agent at Los Angeles,
California, or at any place.
"'That
on or about the date aforesaid, the defendants placed the
said personal property in an inclosed freight
car of the defendant Railway Company at Kansas City,
Missouri, 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 nearby, 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 nearby, 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 three thousand dollars.
"'That
by reason of the facts aforesaid, plaintiff has been damaged
in the sum of three thousand dollars, 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 re-deliver
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 (3 Ed.) pp. 109, 110, 117.] We cannot
construe the petition, either before 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 the amendatory...
