Transamerican Freight Lines v. Monark Egg Corp.
| Decision Date | 04 May 1942 |
| Citation | 161 S.W.2d 687,236 Mo.App. 1047 |
| Parties | TRANSAMERICAN FREIGHT LINES, INC., A CORPORATION, RESPONDENT, v. MONARK EGG CORPORATION, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Albert A Ridge, Judge.
AFFIRMED.
Judgment affirmed.
Harry F. Murphy for respondent.
(1) Defendant, in making request for findings of fact and conclusions of law admitted there was sufficient evidence to establish plaintiff's case. Smith v. Universal Finance Co., 234 Mo.App. 813, 137 S.W.2d 489; Cantley et al. v. American Surety Co., 225 Mo.App 1146, 38 S.W.2d 739. (2) The findings and judgment of the court were for the right party. Inzerille et al. v Chicago, B. & Q. R. Co., 225 Mo.App. 1213, 35 S.W.2d 44; Lacy v. National Finance Corp., 79 S.W.2d 1078.
Johnson, Lucas, Graves & Fane for appellant.
(1) The court erred in refusing to make findings of fact numbered IV, V, VI, XII, XIII and XIV, and each of them, and in refusing to state declarations of law lettered "B," "C," and "D," and each of them. (a) Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758, 763; Horwitz v. Schoper (Mo. App.), 119 S.W.2d 474, 480; Restatement of The Law of Agency, sec. 257; 21 R. C. L., p. 853; 2 Am. Jur., p. 269; 2 C. J., p. 832; 3 C. J. S., p. 146. (b) Plaintiff's manager was present at the trial and his failure to testify on matters which were peculiarly within his knowledge raises a presumption that his testimony, if introduced, would have been adverse to his contentions. Guthrie v. Gillespie, 319 Mo. 1137, 1146, 6 S.W.2d 886, 890; Sullivan v. G. & N. I. R. Co., 308 Mo. 48, 66, 271 S.W. 983; Sanders v. Kaster (Mo.), 222 S.W. 133, 135; Kame v. St. L. & S. F. R. Co., 254 Mo. 175, 194, 162 S.W. 240; Bryant v. Lazarus, 235 Mo. 606, 612, 139 S.W. 558, 560; Conn. Mutual Life Ins. Co. v. Smith, 117 Mo. 261, 22 S.W. 623; 20 Am. Jur., p. 192; 22 C. J., p. 115. (2) The court erred in refusing to make findings of fact numbered VIII, XVI, XVIII, XIX and XX, and each of them, and in refusing to state declarations of law lettered "E," "F" and "G," and each of them. New York P. & N. R. Co. v. Peninsula Produce Exchange, 204 U.S. 34, 36 S.Ct. 230, 60 L.Ed. 511; Chicago & Alton R. Co. v. Kirby, 225 U.S. 155, 32 S.Ct. 648, 56 L.Ed. 1033; Smothers v. Chicago R. I. & P. Ry. Co. (Mo. App.), 15 S.W.2d 884, 886; Mount Arbor Nurseries v. New York, C. & St. L. R. Co., 217 Mo.App. 31, 273 S.W. 410, 413; Johnson v. Mo. P. R. Co., 211 Mo.App. 564, 249 S.W. 658; Harrison v. Chicago & Alton R. Co., 209 Mo.App. 526, 239 S.W. 871; Needly v. Hines (Mo. App.), 237 S.W. 906; Holland v. Hines (Mo. App.), 234 S.W. 366; McFall v. Railroad, 117 Mo.App. 477, 481, 94 S.W. 570; Lord & Bushnell Co. v. Texas & N. O. R. Co., 155 Mo.App. 175, 134 S.W. 111; Ward v. Gulf M. & N. R. Co., 22 Tenn.App. 533, 134 S.W.2d 917; 9 Am. Jur., p. 704; 4 R. C. L., p. 813.
Plaintiff is a common carrier by motor vehicle of property for hire in interstate commerce, and sues for the recovery of freight charges due from the defendant to it for a number of shipments of eggs.
Defendant, in its answer, admitted that it owed the amount of the charges, but asked to be credited for the amount of its loss suffered by reason of a decline in the market value of a certain shipment of eggs from Kansas City to Pittsburgh, Pennsylvania. The loss was alleged to have been caused by the failure of plaintiff to complete the carriage within a reasonable time. A balance of $ 158.40 was claimed by defendant.
The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiff on its cause of action and against defendant on its counterclaim. Defendant has appealed.
The facts in relation to defendant's counterclaim show that plaintiff is subject to the provisions of the Motor Carriers Act and the rules promulgated thereunder by the Interstate Commerce Commission; that the eggs in question were transported under a bill of lading in form prescribed and approved by the Interstate Commerce Commission.
The shipment of eggs in question was delivered to plaintiff by defendant between 6 and 7 P. M. of Saturday, December 31, 1938, but it did not leave Kansas City until the afternoon of the following day. It arrived at its destination about 9 A. M. of January 5th, 1939.
Plaintiff's witness, Swallow, testified that he was its manager in Kansas City and that it had a schedule for service from Kansas City to Pittsburgh but not a guaranteed schedule; that the schedule was for the arrival of a shipment in Pittsburgh "ordinarily . . . the fourth day out of Kansas City;" that the eggs in question arrived in Pittsburgh in the usual time, or, on the afternoon of the fourth day; that plaintiff operates a truck line directly from Kansas City to Pittsburgh and it would have been possible to have transported the shipment in question without reloading the eggs in transit; that the shipment was transferred from one of plaintiff's trucks to one belonging to the Anderson Motor Freight Lines at Cleveland. However, the whole transportation was over plaintiff's lines, as it leased the equipment of the Anderson Motor Freight Lines; that it would take possibly three hours to transfer the eggs in question. There is no explanation as to why the eggs were transferred.
Defendant's evidence concerning the circumstances of the shipment was testified to by Mr. Rosenblum, its president and general manager, and Mr. Rybolt, who was the commercial agent or freight solicitor for plaintiff in Kansas City. However, at the time of the trial Rybolt was no longer in plaintiff's employ. These witnesses testified, to the effect, that about noon of Saturday, December 31, 1938, Rybolt, having solicited defendant for the business, it agreed to make the shipment over plaintiff's line providing that the eggs would arrive in Pittsburgh on the following Tuesday morning. Rybolt informed Rosenblum that plaintiff did not permit its trucks to travel on the highways on New Year's Eve, or, on Sundays or holidays, and that unless the rule could be waived in this instance the shipment could not be made so as to arrive in Pittsburgh on Tuesday morning. He told Rosenblum that he would find out if the rule would be waived. Rybolt then went to confer with Swallow, who called plaintiff's St. Louis office, and it informed the latter that the load would be in Pittsburgh in 36 hours after its arrival in St. Louis. Swallow then wired Detroit, plaintiff's home office, to get authority to transport the loan on Sunday. Such authority was received later that day and Rybolt so reported to Rosenblum and stated that the eggs would be in Pittsburgh in 36 hours after their arrival in St. Louis. Before the eggs were tendered to plaintiff for shipment Rybolt promised Rosenblum that there would be no transfer to another carrier enroute.
Defendant had sold the eggs to the consignee and upon their arrival in Pittsburgh it received a telegram from the consignee rejecting the shipment because of delay. Rosenblum immediately telephoned Swallow and told him of the rejection and stated that it "looked like there was a load of eggs that he had bought." Swallow then asked him what the defendant could do with them and Rosenblum replied that, while the market had declined quite a bit, he would try to get the consignee to take the eggs on some arrangement and that he might be required to allow the consignee as much as 60c per case. Swallow then told Rosenblum to settle the best he could and he later telephoned the consignee and settled with him on the basis of the payment of 45c per case. There were 336 cases in the load. Rosenblum reported the settlement to Swallow, who stated that he was very happy over it and thought the company would be. Rosenblum then wrote the plaintiff a letter confirming these telephone conversations and making a written claim for $ 158.40.
Plaintiff's general claim agent, on April 4, 1939, wrote defendant as follows:
"Had these shipments moved during the week, excluding Sunday or Holidays there is no doubt but that they would have reached destination in our usual transit time."
The decline in the market and the amount of the loss are not contested, but plaintiff denies responsibility for the loss.
There is some conflict in the testimony as to the "usual transit time" between Kansas City and Pittsburgh. As above stated, Swallow testified that it was four days. Other witnesses for plaintiff testified to the same effect. Rybolt testified that it was forty-four hours; Rosenblum that it was forty-eight hours, but, under ordinary circumstances, the third morning. Other witnesses testifying for the defendant stated it to be thirty-seven hours, or the third morning.
Twenty separate findings of facts were requested of the court by the defendant. Seven were given and 13 were refused. Seven declarations of law were requested by the defendant, one of which was given and six were refused. From an examination of the findings of facts and declarations of law, refused and rejected, it appears that the court found that Rosenblum told Rybolt that he would engage the plaintiff to transport the load of eggs only if he were assured of delivery to the consignee on or before Tuesday, January 3, 1939; that before defendant engaged plaintiff to transport the eggs in question Rybolt advised defendant's president that he, Rybolt, had no authority to waive said rule concerning no Sunday or holiday movement of plaintiff's trucks, but he would ask his superior, plaintiff's Kansas City manager, to waive the same; that plaintiff received the eggs on December 31, 1938, between 6:00 and 7:00 P. M.
However, the court refused to find that plaintiff's Kansas City manager, Swallow, telephoned plaintiff's...
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