W. R. Hall Grain Company v. Louisville & Nashville Railroad Company
| Decision Date | 03 May 1910 |
| Citation | 128 S.W. 42,148 Mo.App. 308 |
| Parties | W. R. HALL GRAIN COMPANY, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
Bryan & Christie and H. R. Small for appellant.
(1) The finding and verdict and judgment are for the plaintiff on each of the seven counts alleged in plaintiff's amended petition, although there was a failure of proof upon each of the causes of action alleged in each of said counts of plaintiff's amended petition. Ingwerson v Railroad, 205 Mo. 328. (2) Disregarding the allegations in the first five counts of plaintiff's amended petition plaintiff's evidence conclusively showed no right to recover on any theory, pleaded or unpleaded: First, because by such evidence it was shown that the corn was uninjured when it arrived at Nashville and when notice of arrival to the notified party was given. Second, because by such evidence the damage to the corn was shown to have taken place at Nashville and was due to the fact that it was brought from a northern to a southern climate by plaintiff with the certain consequence that it would germinate as it and thousands of other cars did during the notably hot, wet spring of 1907. Freeman v. Railroad, 118 Mo.App 526, 533. Third, because after notice of arrival it was defendant's duty to deliver only in accordance with the bill of lading direction of plaintiff to the holder of the bill of lading on its surrender, and in case the holder failed to surrender the bill of lading for the corn, the duty remained in defendant as a warehouseman to use reasonable care to hold or store the grain for the account of the owner, and because by plaintiff's own evidence it was shown that plaintiff did not surrender the bill of lading for the ten cars of corn destined to Nashville until one month after notice of arrival had been given, and because because during that month, by plaintiff's own evidence, defendant, as a warehouseman, fully performed its duty. Lyons v. Railroad, 119 N.Y.S. 703; F. H. Smith Co. v. Railroad, 122 S.W. 342. Fourth, because by plaintiff's own evidence plaintiff negligently failed under the adverse atmospheric and congested traffic conditions at Nashville to take charge of the corn after notice of arrival had been given and so contributed to cause the injury to the corn, and so is barred from recovery. Hardin Grain Co. v. Railroad, 134 Mo.App. 681. Fifth, because defendant, at common law or by contract, either as a carrier or as a warehouseman, is not held to an insurable liability for the consequences of delay. The liability is for negligence only in case of delay. Thompson on Neg., sec. 5451. (3) Even if the evidence under the first five counts disclosed a right in plaintiff to recover, but not the right claimed in the amended petition, plaintiff cannot recover. Plaintiff cannot sue on one cause of action and recover on another. Ingwerson v. Railroad, 205 Mo. 328. (4) So confusing is the amended petition as to the theory of plaintiff that the trial court treats the suit as in contract, while the plaintiff treats it as in tort. For this reason a new trial should have been granted. Pipe Co. v. Railroad, 137 Mo. 479. (5) The bill of lading contract proven was a contract to carry only over defendant's own lines. Nenno v. Railroad, 105 Mo.App. 540, and cases there cited; Railroad v. Stone (Tenn.), 105 Am. St. Rep. 955; Myrick v. Railroad, 107 U.S. 102; Grain & Elevator Co. v. Railroad, 138 Mo. 658. A railroad company is only bound, in the absence of a special contract, to safely carry over its own road and safely deliver to the next connecting carrier. Grain & Elevator Co. v. Railroad, 138 Mo. 658; Myrick v. Railroad, 107 U.S. 102; 4 Elliott on Railroads, sec. 1433; Hutchinson on Carriers (3 Ed.), sec. 233. Defendant is alleged and shown to be the initial carrier and other unnamed carriers are alleged to be connecting carriers, who complete the carriage to Athens. The proof wholly fails to show that the car of corn referred to in the sixth count was damaged.
R. P. & C. B. Williams for respondent.
(1) At the time the shipments in question were received, the defendant knew of the congested condition in the yards at Nashville, and plaintiff had no knowledge of such conditions. Under such circumstances, the defendant cannot set up such conditions as a ground for non-liability. Grain Co. v. Wabash, 114 Mo.App. 496; 2 Hutchinson on Carriers, sec. 496, and cases cited; Schwab v. Railroad, 13 Mo.App. 151. The rule declared by the court in instruction 5 as to the measure of damages in this case is the correct rule. That is to say, the measure of recovery is the difference between the market value of the corn, kiln dried, at the time same should have been dried by said elevator company, and the market value of said corn at the time the same was actually dried by said elevator company, with 6 per cent interest on the said amount, and such other damages as have naturally and proximately resulted from the injury. 3 Hutchinson on Carriers, sec. 1362; Matney v. Railroad, 75 Mo.App. 235; Shelby v. Railroad, 77 Mo.App. 211; Matney v. Railroad, 75 Mo.App. 233; Heil v. Railroad, 16 Mo.App. 363. (2) Upon the question of value, evidence of actual sales of the same kind and quality of property as that in question is admissible. 1 Elliott on Evidence, sec. 182, and cases cited; Maffett v. Hereford, 132 Mo. 518; Sinclair v. M., K. & T., 70 Mo.App. 596, 16 Cyc. 1141; Rickey v. Tenbrook, 63 Mo. 563. (3) The defendant's duty as a common carrier was not ended when it carried the shipments to Nashville, Tenn., and notified the Nashville Warehouse Elevator Company, but such duty continued until the shipments were delivered on the tracks of the elevator company. 4 Elliott on Railroads, sec. 1518. (4) The evidence shows that the other seven cars which went along with the shipments in question, and which reached Nashville at about the same time as the shipments in question, were delivered on time and promptly dried by the elevator company. (5) The defendants seem to have overlooked the point that the relation between the shipper and the carrier is always contractual. Under the authorities in this State, plaintiff's petition proceeds upon the theory of an action ex delicto for the defendant's breach of duty arising out of its common law liability. Heil v. Railroad, 16 Mo.App. 363; 3 Hutchinson on Carriers, secs. 1333, 1351. (6) The fact that the plaintiff says in its petition that defendant "agreed" to carry the property to destination, did not make the action one on a contract, and the introduction of the bills of lading by the plaintiff did not convert the action into one on a contract. The bills of lading were offered simply to show the receipt of the property by the defendant. Heil v. Railroad, 16 Mo.App. 363; 3 Hutchinson on Carriers, sec. 1335; (7) There is no variance between the proof and the allegations of the petition, but even if it should be held that there was a variance, the same was waived by the defendant and the question cannot be raised under our statutes, sections 665 and 656, after verdict. (8) The initial carrier cannot exempt itself as to interstate shipments from its common law liability by contract or otherwise, and this law is binding upon the state courts; and in this case the initial carrier is liable as to the Athens, Georgia, shipment. Sec. 20 of the Interstate Commerce Act; Smeltzer v. Railroad, 168 F. 420 and 158 F. 649; Railroad v. Crenshaw, 63 S.E. 865; Railroad v. Grayson, 115 S.W. 933. (9) There as no consideration for the stipulation in the bills of lading that the shipments were at "the risk of the owner and subject to delay." Phoenix v. Railroad, 101 Mo.App. 453; Connelly v. Railroad, 113 S.W. 233.
The plaintiff is a corporation engaged in the grain business in the city of St. Louis, Missouri, and defendant is a common carrier with a line of railroad extending from the city of East St. Louis, Illinois, to Nashville, Tennessee. The Nashville Warehouse & Elevator Company is a corporation engaged in handling corn and other grains in the city of Nashville, drying, storing, or doing whatever customers request to improve or preserve them. From the twenty-third to the twenty-eighth of March, inclusive, plaintiff shipped ten carloads of corn from East St. Louis over defendant's line to Nashville, Tennessee, consigned to plaintiff at destination, with a direction in the bills of lading to notify said elevator company of the arrival of the cars. Plaintiff had bought this corn on the St. Louis market whither it had been shipped from northern points, mainly Omaha, Nebraska, over the Chicago, Burlington & Quincy Railroad to East St. Louis, where plaintiff had it run through an elevator three times to clean it of dirt, dry and prepare it for shipment to southern markets. The corn was graded No. 4, there being three grades, two, three and four, which are based, in some measure, on whether the corn is yellow or white and the quantity of dirt mixed with it, but largely, too, on the quantity of moisture it contains. Experts testified it is possible to raise No. 4 corn to No. 3 grade and even to No. 2, by a process of drying which will take sufficient moisture out of it. Plaintiff wished to have this corn dried again in Nashville by the Nashville Elevator Company before it was sent into the southern markets--wished to have this done both to prevent the corn from spoiling before it was sold, and to raise the grade. Therefore plaintiff intended to send it to Nashville in the cars of the Chicago, Burlington & Quincy Railroad in which it had been brought to East St. Louis; intended after it had been cleaned at the elevator in East...
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