United Metals Selling Co. v. Pryor

• Decision Date: 20 April 1917
• Docket Number: 4526.
• Citation: 243 F. 91
• Parties: UNITED METALS SELLING CO. v. PRYOR et al.
• Court: U.S. Court of Appeals — Eighth Circuit

243 F. 91

UNITED METALS SELLING CO. v. PRYOR et al.

No. 4526.

United States Court of Appeals, Eighth Circuit.

April 20, 1917

Rehearing Denied July 9, 1917.

Jones Hocker, Hawes & Angert and George F. Haid, all of St. Louis Mo., and Shearman & Sterling, of New York City, for appellant.

James L. Minnis and N. S. Brown, both of St. Louis, Mo., for appellees.

Before SANBORN, Circuit Judge, and REED and BOOTH, District Judges.

REED District Judge.

In a suit of the Equitable Trust Company of New York, as trustee a New Jersey corporation, against the Wabash Railroad Company, a consolidated railroad corporation of Missouri and other states, pending in the United States District Court for the Eastern District of Missouri, to foreclose certain mortgages upon the property of the railroad company, in which Edward B. Pryor and Edward F. Kearney were duly appointed as receivers of the property of the railroad company, the appellant, the United Metals Selling Company, a corporation, in due time filed an intervening petition claiming of the Wabash Railroad Company the sum of $2,447.60 as the value of 415 ingots or bars of refined copper, weighing 18,674 pounds, alleged to have been lost from the car in which it was shipped, while in the custody of the railroad company upon its tracks in St. Louis, Mo., consigned to the Moore-Jones Brass & Metal Company of that city, under a bill of lading issued to the intervener by the Chicago & Duluth Transportation Company at Chicago, Ill., December 6, 1909, which copper it is alleged was delivered to the railroad company at St. Louis and lost from the car in which it was shipped while in its custody, about January 7, 1910, solely through the negligence, carelessness, and wrongful acts of the defendant railroad company; and judgment is prayed against the railroad company for the value of said copper, with interest from January 7, 1910, and that it be decreed a lien upon the property of the railroad company or its proceeds in the custody of the court, prior to the complainant's mortgage upon said property.

The railroad company and the receivers answered the intervening petition, admitting that about December 6, 1909, the intervener shipped some 40,000 pounds of refined copper from Chicago, to the Moore-Jones Brass & Metal Company at St. Louis, by the Chicago & Duluth Transportation Company and connecting carriers, but denies that it was lost, if lost at all, because of any neglect or fault upon the part of the railroad company, and further allege that the defendant railroad company on December 30, 1909, received the car containing said copper from the Terminal Railroad Association of St. Louis, and on January 1, 1910, notified in writing the consignee, Moore-Jones Brass & Metal Company, of the receipt thereof, and thereafter held said car as a warehouseman only, and not as a common carrier. Some other defenses may be noticed in the course of the opinion.

The matter was submitted to the special master in said foreclosure proceedings upon a stipulation of facts, which so far as deemed material is set forth in the margin. ^[1] 1. The master filed with the court his findings and recommendations as follows:

' * * * The (intervening) petition alleges that about December 6, 1909, the petitioner shipped 775 ingots of refined copper, weighing 40,002 pounds from Chicago, Ill., to the Moore-Jones Brass & Metal Company in St. Louis, under a bill of lading issued by the Chicago & Duluth Transportation Company to the petitioner, dated at Chicago, December 6, 1909. This is admitted by the defendants. It is alleged that the car containing the copper was delivered by the Terminal Railroad Company of St. Louis to the defendant railroad company about January 2, 1910, with the seals of the car intact; that thereafter, about January 7, 1910, the car was delivered by the defendant railroad company to the Moore-Jones Brass & Metal Company, but that at the time of the delivery the seal of the west side door of the car was missing, and the car contained only 415 ingots of copper, weighing 21,328 pounds, which was 18,674 pounds less than the car contained when it was delivered to the defendant railroad company. This allegation is disputed and denied by the defendants, who aver that the Terminal Railroad Company did not deliver the car until December 30, 1909, and that the delivery by the Wabash Railroad Company to the Moore-Jones Brass & Metal Company was made on the 2d of January, 1910, instead of the 7th of January. The defendants also dispute the averment as to the seals, and as to the loss of copper from the car. It is alleged and admitted that the petitioner lodged its claim with the defendant railroad company on account of its alleged loss about January 20, 1910, and thereafter made repeated demands upon the railroad company for the settlement of the claim. There are averments as to repeated efforts to adjust the claim between the parties, prior to the receivership and since; but these matters are not considered material by the undersigned, in view of the conclusions which he has reached upon the merits of the controversy. * * *

'Upon the facts submitted to me, which are altogether covered by stipulation herewith returned, I find that the defendant railroad company effected a complete delivery of the shipment to the consignee, Moore-Jones Brass & Metal Company, because of the provisions of the tariff of the Wabash Railroad Company, under which delivery must be considered to have been made when the car was tendered by the railroad company to the consignee. The car containing the copper was carried by the Wabash Railroad Company to its yard and placed on its track No. 24 on December 30, 1909, with seals intact. On January 1, 1910, the car was transferred to track No. 25 and the consignee was notified that the car was on the track for its unloading or disposition. This notice was given by reason of condition of tracks on which car was being held by the railroad company for the consignee.

'Finding, as I do, that the delivery of the car was made by the railroad company for the consignee, it is unnecessary to consider whether any liability was attached to the defendant railroad company as a warehouseman. I accordingly recommend that the intervening petition be dismissed.

'(Signed) Chester H. Krum, Special Master.'

The court overruled intervener's exceptions to the findings and report of the master, and entered a decree dismissing its petition, and it prosecutes this appeal to reverse such decree.

The appellant assigns as error that under the facts stipulated the master and court erred in finding and holding:

(1) That under the bill of lading and tariff schedules of the carriers, filed with the Interstate Commerce Commission and duly posted, the tender of the car containing the copper by the defendant railroad company to the consignee Moore-Jones Brass & Metal Company on January 1, 1910, effected a delivery of the copper to the consignee and relieved the railroad company of any further liability as a common carrier for the copper.

The bill of lading and tariff schedules in unmistakable terms provide:

'Sec. 5. That property not removed by the party entitled to receive it, within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may at the option of the carrier be removed to and stored in a public or licensed warehouse, at the cost of the owner and there held at the owner's risk and without liability on the part of the carrier and subject to a lien for all freight and other lawful charges including a reasonable charge for storage.'

The car containing this copper was received by the Wabash Railroad Company in St. Louis from the Terminal Railroad Company December 30, 1909, and placed on one of its tracks (No. 24) in its yards, on January 1, 1910, and was transferred to track No. 25 in the same yard, and the consignee notified in writing that the car was there for its unloading or other disposition subject to a charge of $1 a day or fraction thereof for all time that it should be held beyond the free time allowed by the rules of the company for unloading. The tariff of the Wabash Company, then on file with the Interstate Commerce Commission and duly posted as required by law, provides:

'That when delivery of cars consigned or ordered to private industrial spur tracks cannot be made on account of the act, neglect, or inability of the consignee to receive them, delivery will be considered to have been made when the cars are tendered. The carrier's agent must give the consignee written notice of all cars it has been unable to deliver, because of the condition of the private track, or of other conditions attributable to consignee; this will be considered a constructive placement.'

Such was the contract between the appellant, the consignee, and the Wabash Railroad Company; and the consignee paid to the Wabash Railroad Company $4 for demurrage charges on this car under such schedules, covering the 4 days next succeeding the 48-hour period allowing for unloading, which demurrage accrued while the car was held by the Wabash Company on its track No. 25.

The act to regulate commerce as amended to and including June 29 1906, provides in effect (section 1) that 'transportation,' which the act regulates, shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership, or of any contract express or implied for the use thereof and all services in connection with the receipt, delivery, elevation,...