Walton v. A.B.C. Fireproof Warehouse Co.

• Decision Date: 30 January 1939
• Docket Number: No. 19338.,19338.
• Citation: 124 S.W.2d 584
• Parties: T.H. WALTON, JR., RESPONDENT, v. A.B.C. FIREPROOF WAREHOUSE CO., APPELLANT.
• Court: Missouri Court of Appeals

124 S.W.2d 584

T.H. WALTON, JR., RESPONDENT, v. A.B.C. FIREPROOF WAREHOUSE CO., APPELLANT.

No. 19338.

Kansas City Court of Appeals. Missouri.

January 30, 1939.

Appeal from Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

REVERSED AND REMANDED.

James B. Nourse and William Paul Pinkerton for appellant.

(1) The court erred in giving plaintiff's Instruction "A" because: (a) The petition having alleged negligence of the defendant in transporting goods, plaintiff must recover if at all on the ground of negligence and cannot recover on the Insurer theory. "A party cannot declare on one cause of action and recover judgment on another." State ex rel. v. Trimble, 257 S.W. 104, l.c. 107; Ozark Fruit Growers Association v. St. Louis and San Francisco R.R. Co., 46 S.W. (2d) 895, l.c. 896; Gash v. Mansfield, 28 S.W. (2d) 127; Kennedy v. Insurance Co., 76 S.W. (2d) 748; Phillips v. Thompson, 35 S.W. (2d) 382; Alexander v. Wabash R.R. Co., 38 S.W. (2d) 545; Haake v. Union Bank and Tr. Co., 54 S.W. (2d) 459, l.c. 462; Gary v. Overall, 12 S.W. (2d) 747, l.c. 750. (b) It covers the entire case and directs a verdict yet assumes and omits essential disputed facts, such an instruction is reversible error. Daniel v. Artesian Ice & Cold Storage Co., 45 S.W. (2d) 548, l.c. 553, and cases cited; Henglesberg v. Cushing, 51 S.W. (2d) 187, l.c. 189, and cases cited; Jones v. R.R., 50 S.W. (2d) 217, l.c. 220-221. (c) It is in conflict with Instructions 3 and 7 given by the court. Manson Tebbetts Implement Co. v. Ritchie, 143 Mo., l.c. 613. (d) It incorrectly states the measure of damage. Ward v. American Ry. Express, 259 S.W. 514; Klingenberg v. Davis, 268 S.W. 99. (2) The correct measure of damage in this case is the reasonable market value of the goods lost at destination less unpaid freight charges. Mrs. Walton was not properly qualified to give and did not give such evidence and the court erred in admitting her testimony. Cases cited under 1-(d); Taylor v. St. Louis & H.R. Co., 256 S.W. 499, l.c. 500. (3) The court erred in overruling defendant's demurrer to the evidence at close of plaintiff's evidence, and at the close of all the evidence, because plaintiff's petition being based on negligence, and no proof of negligence being submitted to the jury, the defendant was entitled to a directed verdict. State ex rel. v. Trimble, 257 S.W. 104. l.c. 107; Ozark Fruit Growers Assn. v. St. Louis & San Francisco R.R., 46 S.W. (2d) 895, l.c. 896. (4) The court erred in refusing defendant's Instructions 1, 2, 4, 5, 6.

Jenkins & Vance for respondent.

(1) Plaintiff's Instruction A was correct because: The petition charges that the defendant, A.B.C. Fireproof Warehouse Company, is a common carrier and as such it is an insurer of goods and is liable for its negligence as a receiving carrier as well as the connecting carrier. State v. Taylor (Mo.), 251 S.W. 383; Hunter v. American Railway Express, 4 S.W. (2d) 847; Singer v. American Express Co., 203 Mo. App. 158; Otrich v. Railroad, 154 Mo. App. 420. (2) The entire series of instructions must be read and construed together and correctly declares the law when read with defendant's Instructions 3 and 7. State v. Taylor (Mo.), 251 S.W. 383; Hunter v. American Railway Express, 4 S.W. (2d) 847; Singer v. American Express Co., 203 Mo. App. 158; Otrich v. Railroad, 154 Mo. App. 420; McDonald v. K.C. Gas, 59 S.W. (2d) 37; Larry v. M.K. & T., 64 S.W. (2d) l.c. 684; Kines v. Jameson, 277 S.W. l. c. 972; Jenkins v. Missouri State, 69 S.W. (2d) l.c. 669. (3) Both the receiving carrier and the connecting carrier are liable to the plaintiff for failure to safely deliver plaintiff's goods; the defendant, A.B.C. Warehouse Company, however, by its bill of lading and its contract with the connecting carrier has prevented recovery from the connecting carrier, Sunflower Lines, of the true value of the goods. State v. Taylor (Mo.), 251 S.W. 383; Bradford v. Hines, 206 Mo. App. 582; Singer v. American Express, 203 Mo. App. 158; Otrich v. Railroad Co., 154 Mo. App. 420. (4) The A.B.C. Fireproof Warehouse Company acted as a common carrier and not a warehouseman. (5) The evidence offered by plaintiff as to the value of the goods destroyed was competent and proper.

KEMP, J.

This is a suit to recover the value of a shipment of household goods and effects, arising out of the failure of the two defendants, A.B.C. Fireproof Warehouse Company and Sunflower Lines, Inc., as alleged common carriers, to make delivery of the goods to the respondent (hereinafter referred to as plaintiff) as consignee thereof. The owner of the goods, who was the consignee of the shipment involved herein, was an employee of the Universal Credit Company located in Kansas City, Missouri. Immediately preceding the transactions herein referred to, he had been transferred to Joplin, Missouri, and had gone to Joplin and taken up his duties there in advance of arrangements being made for the shipment of his goods. J.A. Clark, Assistant Manager of the local office of the Universal Credit Company in Kansas City, made all arrangements for the shipment of plaintiff's goods. The said Clark contacted Mr. Thomas, an officer of the A.B.C. Fireproof Warehouse Company, and requested him to go out to plaintiff's apartment and examine the goods to be shipped and give him an estimate of the costs for packing and shipping said goods to Joplin, Missouri. After having the goods inspected, Mr. Thomas, in a conversation with Mr. Clark, estimated that the weight of the shipment would be approximately two thousand pounds and submitted two alternative (defendant says three) estimated costs of carriage, depending upon respective methods and conditions of shipment. Thereupon, Mr. Clark directed him to go out and get the goods and take them to the warehouse, and said that he would advise the A.B.C. Fireproof Warehouse Company within a day or two as to when to ship the goods to Joplin. Within two or three days Mr. Clark was in Joplin and ascertained that an apartment had been procured by the plaintiff. He thereupon called the defendant, A.B.C. Fireproof Warehouse Company, by long-distance and talked to Mr. Newman and requested that they ship the goods out immediately so that they would arrive in Joplin the following morning. Mr. Newman asked him for details about the shipment and was instructed that Mr. Thomas would know all about it. Mr. Thomas, upon being advised of these instructions, called the defendant, Sunflower Lines, and requested them to pick up the shipment for their night haul to Joplin. Mr. Thomas testified that in quoting a $35 price to Mr. Clark, he specifically mentioned that would involve sending the shipment by railroad or by truck and that he specifically mentioned the Sunflower Lines in connection with the possible shipment by truck. Mr. Clark denies that there was any mention of the Sunflower Lines.

The Sunflower Lines route from Kansas City, Missouri, to Joplin, Missouri, goes into the State of Kansas. At Arma, Kansas, the Sunflower Lines truck in which the goods were being transported collided with a train and most of the goods involved here were destroyed. The bill of lading was made out by the A.B.C. Fireproof Warehouse Company and named that company as the shipper and showed a declared value of the goods at 10c per pound. Shortly after the loss plaintiff prepared an itemized statement of the goods lost and the respective values of each item thereof and, through the A.B.C. Fireproof Warehouse Company, made claim therefor against the Sunflower Lines, Inc. Within a reasonable time the Sunflower Lines, Inc., tendered to plaintiff its check in the amount of $78.79, which represented the declared value of the goods lost on the basis of 10c per pound. Plaintiff refused the check on the ground that he was entitled to the full reasonable value of the goods which he claimed to be $688.25. Plaintiff at the same time advised the defendant, A.B.C. Fireproof Warehouse Company, that he was looking to it for payment of this loss.

Upon the trial of the case, defendant Sunflower Lines showed its tender to plaintiff of $78.79 in payment for the loss on the basis of 10c per pound and, further, that upon plaintiff's refusal to accept same, it had paid that sum to the Clerk of the Circuit Court in discharge of its limited liability under the terms of the bill of lading. Thereupon, the trial court sustained defendant Sunflower Lines' demurrer to the evidence.

Plaintiff seeks recovery on the theory that defendant A.B.C. Fireproof Warehouse Company accepted the goods as a common carrier for transportation to Joplin and is liable for the full value of the goods lost in shipment. Defendant A.B.C. Fireproof Warehouse Company defends on the ground that it received the goods as a warehouseman and as such acted merely as plaintiff's agent in selecting a carrier to transport the goods to Joplin, Missouri, and hence liable, if at all, only for its failure to exercise reasonable care in handling and caring for the goods while they were in its possession, and in selecting a carrier to transport said goods.

Instruction "A", given on behalf of plaintiff, is as follows:

"The court instructs the jury that if you find and believe from the evidence that the Walton goods were turned over by the plaintiff to the A.B.C. Fireproof Warehouse Company, and accepted by them for transportation to Joplin, Missouri, if so, then the A.B.C. Fireproof Warehouse Company became the insurer of said goods and guaranteed the safe delivery to the consignee, Walton, at Joplin, and if you find and believe from the evidence that the A.B.C. Fireproof Warehouse Company, failed to deliver said goods safely to the plaintiff at Joplin, then your verdict shall be for this plaintiff and against the defendant in such amount as is the fair and reasonable market value of the goods lost or destroyed."

Defendant first charges that said instruction is erroneous for the reason that it fails to submit to the...