Wall v. American Ry. Express Co.
Citation | 272 S.W. 76 |
Decision Date | 04 May 1925 |
Docket Number | No. 15176.,15176. |
Parties | WALL et al. v. AMERICAN RY. EXPRESS CO. |
Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Johnson County; Ewing Cockrell, Judge.
Action by R. W. R. Wall and another, doing business under firm name of Wall & Son, against the American Railway Express Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
A. M. Hartung, of New York City, and W. E. Suddath, of Warrensburg, for appellant.
Nick M. Bradley and M. D. Aber, both of Warrensburg, for respondents.
This is a suit for conversion brought in seven counts. There was a verdict and judgment in favor of plaintiffs in the sum of $2,031.45 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, Pa. 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, Mo., 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: " —and filled out a shipping tag which was attached to the package reading as follows:
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:
Another part of the rules and regulations appears as follows:
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, 172 S. W. 1178. Under the provisions of the Interstate Commerce Act (section 8569, U. S. Compiled Stat.) the rules and regulations duly published and filed, which in anywise 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, 224 S. W. 109, and cases therein cited.
Keithley. & Quinn v. Lusk, 190 Mo. App. 458, 470, 177 S. W. 756, 760.
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.
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