Turner Lumber & Investment Co. v. Chicago, R. I. & P. Ry. Co.
| Decision Date | 01 April 1929 |
| Citation | 16 S.W.2d 705,223 Mo.App. 564 |
| Parties | TURNER LUMBER & INVESTMENT CO., RESPONDENT, v. CHICAGO, ROCK ISLAND & PACIFIC RY. CO., APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Ralph S Latshaw, Judge.
AFFIRMED.
Judgment affirmed.
Luther Burns, Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M Lee for appellant.
Goodwin Creason for respondent.
Trimble, P. J., absent.
This is an action to recover for the alleged conversion of two cars of lumber.
The facts shown are that plaintiff is a corporation engaged in the business of buying and selling lumber and building materials, having its executive offices at Kansas City, Missouri; that defendant is a corporation owning and operating a railway system, in part extending from Waveland, Arkansas, to Wister, Oklahoma, Kansas City, Missouri, and other points; that said railway company was and is engaged in interstate commerce in carrying freight for hire as a common carrier.
The petition is in two counts each covering one car of lumber and the facts are identical as to the two cars--the only difference being as to the dates of shipment and the damage sought on each. The prayer is for the recovery of $ 628.78 on one car and $ 812.58 on the other. The petition alleges that the Continental Mill Company, being the owner of timber and sawmills in the State of Arkansas and engaged in the manufacture of lumber, sold to plaintiff one car of lumber on June 29, 1925, and another on June 26, 1925, said cars to be shipped from Waveland, Arkansas, to plaintiff or its order at Wister, Oklahoma; that said two cars of lumber were delivered to defendant at Waveland, by the shipper, the first being loaded into a St. L. & S. F. car; that defendant accepted the shipment and issued its straight bills of lading, naming the shipper as consignor and plaintiff as consignee, and Wister, Oklahoma, as destination; that said bills of lading were delivered by the shipper to plaintiff and that thereafter plaintiff presented said bills of lading to defendant and directed the reconsignment of said cars to Kansas City, Missouri, but that defendant did not consign them as directed, but wrongfully converted them to its own use and reconsigned them to other persons at other points.
The answer was a general denial.
The parties entered into a stipulation as to some of the facts, but reserved the right to introduce evidence at the trial not inconsistent with the stipulation. The points covered by the stipulation are as follows:
"That lumber of the quality and description and amount alleged in the respective counts in the petition was loaded into Frisco and Rock Island cars at Waveland, Arkansas, by the shipper on defendant's tracks, and that defendant by order of the shipper executed on June 29th and 26th, respectively, bills of lading covering said cars; by which bills the cars were consigned to plaintiff at Wister, Oklahoma; that said cars were transported over defendant's road from Waveland, Arkansas, to Wister, Oklahoma; that the plaintiff ordered the lumber in question from the shipper at the solicitation of the latter; that the shipper drew a draft on plaintiff for a sum estimated to be eighty per cent of the invoice value of the lumber; that said draft was presented to plaintiff by a Kansas City bank, to which it had been sent by the shipper for collection; that said draft was dishonored by plaintiff and went to protest; that thereafter and after said cars had reached Wister, Oklahoma, the shipper, which was the consignor, notified defendant to divert said cars to a point other than that designated by the consignee, and that such diversion was made."
By agreement, the cause was tried to the court without a jury. There was a judgment and finding for defendant. On formal motion of plaintiff, duly filed, and sustained by the court for unassigned reasons, a new trial was granted and from this ruling, defendant has appealed.
Only two assignments of error are before us, viz., that the court erred in overruling defendant's demurrer to the evidence, and that the court erred in sustaining plaintiff's motion for a new trial. It is urged in support of the appeal that if there was no evidence which would entitle plaintiff to recover, the action of the trial court in granting a new trial was error, and two cases are cited in support of this position. Defendant asserts there is no evidence upon which plaintiff could recover, while plaintiff's position is to the contrary. The crucial point at issue is, had plaintiff acquired title to the two cars of lumber, and had it the right of possession thereto at the date of the alleged conversion?
As stated above the trial court assigned no ground for sustaining the motion for a new trial and under the rule applicable to this situation, we are not authorized to disturb the finding if any valid reason exists for the court's ruling. This rule is not disputed and citations are unnecessary. In support of the appeal defendant urges there was no evidence to entitle plaintiff to recover and that the trial court erred in granting a new trial; that the only possible claim plaintiff could make in support of the motion for a new trial is that the finding for defendant was against the weight of the evidence. Defendant expresses "doubt that the motion for new trial contains any such ground." But "for the sake of argument we waive the point and take the position that in any event the action of the trial court in granting a new trial should be reversed for the reason that there was no evidence upon which plaintiff could recover."
We think there is no doubt that the motion for a new trial, in the first paragraph, is broad enough to cover the point, where it is said that under the pleadings and all the evidence in the case, the findings and judgment of the court should have been for the plaintiff. And the same point is made in other paragraphs, in effect. It is agreed the shipment was interstate and that the case is governed by rules laid down by the Federal courts. [Wall v. Express Co., 272 S.W. 76; Mourer v. Railway, 280 S.W. 1050; Railroad v. Rankin, 241 U.S. 319; Railroad v. Beaham, 242 U.S. 148.]
The question determinative of this appeal is whether plaintiff had the right of possession at the time of the alleged conversion, and this involves the respective rights of the shipper and consignee; and the duty of defendant in respect thereto is governed by the terms of the Pomerene Act, 39 U.S. Stat. at L., p. 540, and particularly sections 9 and 10, U.S.C.A., title 49, sections 89 and 90. Section 89 provides as follows:
It is well settled by Federal decisions that a carrier is justified in delivering to the true owner or person entitled to possession regardless of the bill of lading, but delivery to a consignee in a bill of lading in the face of notice by the true owner, or one entitled to possession, renders the carrier liable to the owner or one entitled to possession. [Bank v. Trust Co., 4 F.2d 219; In re Taub, 7 F.2d 447; McMahen & Sons v. Railroad, 16 F.2d 698.] In Buschow Lumber Co. v. Hines, 206 Mo.App. 681, 229 S.W. 451, this court held:
"Where goods have been delivered to a carrier to be transported to a consignee the latter has the possession of the goods and by virtue thereof has the right to recover them or their value from any one who seizes them en route except the true owner."
And in Wall v. Express Co., 272 S.W. 76, the Federal statute was given the same construction as given by the Federal courts.
If, therefore, the Continental Mill Company was the owner of the lumber at the time of the alleged conversion, at which time it was still in the possession of defendant, it became the duty of defendant to divert same on order of the consignor. On the other hand, if under the law plaintiff was the owner and entitled to possession of the lumber in question at the time of the alleged conversion, the court did not err in sustaining plaintiff's motion for a new trial. As we read the record the chief point in this respect is, Was the transaction between the Continental Mill Company and plaintiff a sale of the lumber? In considering this question we must look at the straight bill of lading issued herein and see what was its purport. Defendant concedes that the naming of a person consignee in a bill of lading is only prima-facie evidence of title or right to possession in that person; but this presumption can be overcome by proper evidence. The testimony tends to show the procedure in respect to such transactions was that prior thereto lumber was shipped by the consignor to the consignee at the solicitation of the consignor, and sold at various places; that the consignor would load and ship the lumber as agreed upon; that straight bills of lading were issued naming consignor and consignee; that these bills of lading, together with invoices were sent by the consignor to consignee and consignor would make and send to a Kansas City bank for collection drafts on plaintiff for eighty per cent of the invoices. The evidence shows plaintiff claimed shortages on some prior shipments so made and that the differences had not been adjusted at the time the shipments in question were made.
This procedure was followed in the instant case, and payment of the draft for $ 400 (approximately eighty per cent of the invoice price) was...
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......Supp. 450 Shingle Co. v. Old Oregon Lumber & Shingle Co., 110 Wash. 60, 187 P. 705 (1920); § 400.7-104, R.S.Mo. ...49 U.S.C. § 89, Turner Lumber & Investment Co. v. Chicago, R.I. &. P. Ry. Co., 223 Mo.App. 564, ......