Wall v. American Railway Express Co.

• Decision Date: 04 May 1925
• Citation: 272 S.W. 76,220 Mo.App. 989
• Parties: R. W. R. WALL and IRA WALL, DOING BUSINESS UNDER THE FIRM NAME OF WALL & SON, A PARTNERSHIP, RESPONDENTS, v. AMERICAN RAILWAY EXPRESS COMPANY, APPELLANT
• Court: Kansas Court of Appeals

272 S.W. 76

220 Mo.App. 989

R. W. R. WALL and IRA WALL, DOING BUSINESS UNDER THE FIRM NAME OF WALL & SON, A PARTNERSHIP, RESPONDENTS, v. AMERICAN RAILWAY EXPRESS COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

May 4, 1925

Appeal from the Circuit Court of Johnson County.--Hon. Ewing Cockrell, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

A. M Hartung and W. E. Suddath for appellant.

Nick M Bradley and M. D. Aber for respondent.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.

This is a suit for conversion brought in seven counts. There was a verdict and judgment in favor of plaintiffs in the sum of $ 2031.45 and defendant has appealed.

The evidence shows that plaintiffs made a number of shipments of eggs to one Hamilton, doing business as the International Butter Company, at Philadelphia, Pennsylvania. It was the intention of plaintiffs to make C. O. D. shipments but there was evidence tending to show that plaintiffs were persuaded by the express company's agent at Denton, Missouri, where the shipments originated, to make the shipments to themselves at Philadelphia, Pa.; to attach to the express receipt a draft on the International Butter Company; to send these to a bank at Philadelphia so that Hamilton upon payment to the bank of the amount of the draft might procure the express receipt and take it to the express company and get the goods. Carrying out this idea, the agent filled out the space in the express receipt under the word "consignee" as follows: "Wall & Son & Ntfy. International Butter Co. Deliver on Surrender Orig. Exp. Receipt" and filled out a shipping tag which was attached to the package reading as follows: "To International Butter Co. Philadelphia, Penna. Deliver on Surrender of Orig. Exp. Receipt. From Wall & Son Independent Shippers of Cream, Eggs and Produce, Denton, Mo." Each shipment was made in the manner described and is covered by a separate count in the petition. The express company ignored plaintiffs' instructions concerning the delivery of the eggs and turned over each shipment to the International Butter Company without requiring the production of the express receipt.

Defendant introduced in evidence rules and regulations duly published and filed with the Interstate Commerce Commission, which provided that--

"4. Unless caused in whole or in part by its own negligence or that of its agents, the company shall not be liable for loss, damage, or delay caused by . . . c. Improper or insufficient packing, securing or addressing."

"(b) Shipments destined to points in the United States and adjacent Foreign Countries must not be accepted when consigned 'To Order of,' or 'to notify' a bank or any person.

"(c) Uniform express receipts are not negotiable and shipments must not be accepted, the delivery of which is conditioned upon surrender of the original receipt at time of delivery.

"(g) Shipments bearing special instructions. If shipments are accepted bearing special instructions of the shipper to the Express Company, affecting the handling or delivery of shipments, and calling for service not provided for elsewhere in the tariffs or Classifications of the Express Company, no responsibility for compliance with such instructions will be assumed, nor will claims be paid by the Express Company for failure to observe or comply with such special instructions."

Another part of the rules and regulations appears as follows:

"Terminal Service:

"Where special switching or other transportation services, not performed by the express company, nor provided for in its tariffs, are desired by shipper or consignee, the Express Company will, upon request, act as agent for the shipper or consignee in securing the service desired, the shipper or consignee to reimburse the Express Company for the cost of the same as provided in the lawfully filed tariffs of the railroad company performing the service.

"Each package, bundle or loose piece in a shipment (except carloads), must be plainly, legibly, and durably marked with name and address of shipper, also name of consignee and station, town or City and State, to which destined. Where the destination is a City, local address (number and name of street), should be shown.

"Shipments in containers which are customarily used several times for transportation of goods by express, such as bread boxes or poultry coops, which cannot be satisfactorily marked with brush, stencil or waterproof crayon, may be accepted when bearing two address tags securely attached to the package.

"In the event of non-delivery of a shipment by reason of the consignee's refusal to accept it, or by reason of consignee or consignee's address being unknown, written notice thereof must immediately be given to the consignor, if known, by the Agent at destination."

The rule of law announced in the Federal courts govern in this case as it involves interstate shipments. [Dunlap v. Railroad, 187 Mo.App. 201, 204.] Under the provisions of the Interstate Commerce Act (Sec. 8569, U.S. Compiled Stat. 1918) the rules and regulations duly published and filed which in any wise affect the rates or the value of the service to be rendered are controlling upon both parties to the shipping contract. [Pioneer Trust Co. v. Railroad, 204 Mo.App. 328, 330, and cases therein cited.]

". . . any particular bill of lading issued to a particular shipper does not make the contract of shipment but only evidences it. The contract is a general one for all shippers alike, not subject to alteration or change by the shipper or carrier except as the law permits a change applicable to all shippers. Regardless of the terms of any particular bill of lading, the shipper and carrier must take note of the only contract which can be made and that all deviations therefrom are void." [Keithley & Quinn v. Lux et al., 190 Mo.App. 458, 470.]

All of that part of the express receipt quoted after the words "Wall & Son" should be disregarded because forbidden by the rules and regulations on file with the Interstate Commerce Commission. It is admitted that provision g headed "Shipments bearing special instructions" has reference to shipments made in the manner in which these were made although they were shipments "to notify" a "person" and the delivery was conditioned upon the surrender of the original receipt at the time of delivery, which in paragraphs b and c as we have quoted them, is prohibited. It is admitted that these shipments come within paragraph g, that is, shipments accepted by the defendant bearing special instructions, and that these instructions were ignored. Paragraph g provides that the express company should be under no responsibility to comply with such instructions nor would any claim be paid for failure to observe or comply with them.

Defendant is not liable for a mistake of the agent where to so hold would nullify the rules and regulations on file, for that...