The State ex rel. Pabst Brewing Co. v. Ellison
| Decision Date | 31 December 1921 |
| Citation | 226 S.W. 577,286 Mo. 225 |
| Parties | THE STATE ex rel. PABST BREWING COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals |
| Court | Missouri Supreme Court |
Record quashed.
I. J Ringolsky, M. L. Friedman, Ringolsky & Friedman and Wm. G Boatright for relator.
(1) A prima-facie case is made when a delivery of goods to a carrier is shown and a subsequent loss thereof. Steamboat Missouri v. Webb, 9 Mo. 192; Levering v. Trans. & Ins. Co., 42 Mo. 88; Reed v. Ry. Co., 60 Mo 199; Davis v. Railroad, 89 Mo. 340. (2) When a party to a controversy submits evidence to sustain his burden of proof, the other party is entitled to have the case go to the jury, although nothing contradictory be offered. Gannon v. Gas Co., 145 Mo. 502; Hunt v. Wethington, 205 Mo. 284; Prince v. Miller, 233 Mo. 47; Laughlin v. Kansas City Southern, 205 S.W. 5.
Watson Gage & Ess and Fred S. Hudson for repondents.
(1) There was no question of fact to be found by a jury. There was no dispute and could be none as to the appearance presented by this shipment. This appearance of the shipment was given by relator in the way and manner it was shipped and stamped with internal revenue stamps showing it was spirituous liquors. The respondents held as a matter of law the carrier had the right to infer this shipment was just what relator had labeled it, to-wit, "beer," and was justified as a matter of law in refusing to carry the same into prohibition territory. The question is, was the Court of Appeals right in holding as a matter of law that relator was not entitled to recover under its own testimony, which was undisputed? Relator's own evidence showed prima-facie that the shipment was in violation of the laws of Arizona, and the carrier prima-facie would have been guilty of violating the laws of Arizona in carrying it to destination. A carrier cannot be compelled to carry a shipment of liquors into the State of Arizona. United States ex rel. v. Railroad Co., 210 F. 378; Distilling Co. v. Railroad Co., 219 F. 333; Brewing Co. v. Railroad Co., 225 F. 753; Commonwealth v. Harper, 145 Mass. 100. (2) The Southern Pacific Company was justified under relator's evidence in inferring this shipment was beer, and it was prohibited from carrying it unto Arizona. Malt Extract Co. v. Railroad Co., 73 Iowa 98, 34 N.W. 761; Express Co. v. Commonwealth, 33 Ky. L. R. 967, 112 S.W. 577; Nitro-Glycerine Case, 15 Wall. (U.S.) 536; Hutchinson On Carriers (3 Ed.), sec. 796; Clark v. Railroad Company, 179 Mo. 94; Commonwealth v. Mixer, 207 Mass. 141. (3) The rule laid down in the cases relied upon by the relator that it made a prima-facie case by showing a delivery of goods to the carrier and a failure to deliver at point of destination, does not apply to a shipment of goods where it is claimed it is unlawful to deliver such goods as intoxicating liquors, dangerous explosives or dangerous chemicals. In such cases the carrier become liable to a criminal prosecution, if it carries the prohibited goods into prohibited territory, and must act upon the facts and appearances, and if there are reasonable grounds for suspicions, it may refuse to carry such goods, until satisfied they are not in the class prohibited by law. Malt Extract Co. v. Railroad Co., 73 Iowa 98, 34 N.W. 761; Express Co. v. Commonwealth, 33 Ky. L. R. 967, 112 S.W. 577; Nitro-Glycerine Case, 15 Wall. (U.S.) 536; Clark v. Railroad Co., 179 Mo. 94. (4) There was no question of fact to be submitted to the jury to find why this shipment was not delivered. The question was decided by the Court of Appeals, as a matter of law, upon relator's own evidence showing the way and manner this shipment was made by it and the use by relator of United States internal revenue stamps upon each beer keg, and the undisputed fact that relator printed upon each stamped the word "beer," that it was not entitled to recover, and that the carrier had a right to infer, and it was charged as a matter of law with such facts as to apprise it, that said shipment was spirituous liquors, which were prohibited by the laws of Arizona. If the Court of Appeals did err, it was an error of law which is not in conflict with any decision of this court on that particular point, and this court has no jurisdiction to review the decision.
OPINIONIn Banc.
Certiorari.
This is a certiorari case, in which we are asked to quash the record of the Kansas City Court of Appeals in the suit of the Pabst Brewing Company against the Chicago, Milwaukee & St. Paul Railway Company, hereinafter called the Milwaukee, and the Southern Railway Company, hereinafter called the Southern.
The facts revealed by the opinion of the respondents are few and simple.
The Pabst Brewing Company desired to ship 170 half-barrels of a beverage called "Pablo," from Milwaukee, Wisconsin, to Globe, Arizona, and for that purpose delivered this shipment to the Milwaukee, as the initial carrier, which, in turn, delivered it to the Southern.
The Brewing Company had long been engaged in brewing beer and the beverage in question was shipped in half-barrels, of a kind commonly used for the shipment of beer. Each half-barrel had pasted over the bunghole an internal revenue stamp such as was required by the United States Government to be placed upon beer so shipped, and each of these stamps bore printed upon its face the word "Beer."
At the time the Milwaukee received this shipment for transportation it issued to the Brewing Company a bill of lading in the usual form, which specified among other things, that the Milwaukee had received from the Brewing Company 170 half-barrels of "Pablo" for transportation to Globe, Arizona; that the contents and condition of the contents of these half-barrels were unknown, and the further statement that the shipment in question was "170 half-barrels of Pablo, unfermented, non-alcoholic beverages." The goods in question were duly delivered by the Milwaukee to the Southern, and by the latter carrier were transported to Lordsburg, New Mexico. At that time prohibition obtained in Arizona in its most arid form, and beer and all manner of intoxicants were prescribed by constitutional provision, legislative enactment, and judicial decision. At Lordsburg, which was the last station before reaching Arizona, the Southern opened the car containing this shipment and made an examination of the contents of several of these half-barrels. The "chemical experts" employed for that purpose ascertained that the vessels in question contained a liquid which "looked, foamed and smelled like beer." (As to taste, the record is dark.) Thereupon the Southern declined further to transport these goods, notified the Brewing Company of that fact and of its reason for so refusing, namely the law aforesaid, and desired to be informed what disposition the Brewing Company would make of the shipment. It was finally agreed, without prejudice as to any legal rights of the parties, that the Southern should empty the contents, which had spoiled by reason of the delay, and return the containers to the Brewing Company, which was done. Thereupon the Brewing Company sued the two railway companies for damages for the loss of the beverages thus destroyed.
At the trial a verdict was rendered in behalf of the defendants. The trial court granted a new trial, and the defendants appealed to the Kansas City Court of Appeals. The latter tribunal remanded the cause with directions to the trial court to set aside the order granting a new trial and to enter judgment upon the verdict for the defendants.
Relator contends that the decision of the Kansas City Court of Appeals is in conflict with various controlling decisions of this court upon the ground that the facts stated made out a prima-facie case in behalf of relator, which it was entitled to have submitted to a jury, whereas, respondents in their opinion hold that the trial court should peremptorily have instructed the jury to find for defendants.
Pertinent portions of the Court of Appeals' opinion are as follows:
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