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

• Decision Date: 05 May 1941
• Citation: 151 S.W.2d 494,235 Mo.App. 939
• Parties: T. H. WALTON, JR., DEFENDANT IN ERROR, v. A. B. C. FIREPROOF WAREHOUSE COMPANY, A CORPORATION, PLAINTIFF IN ERROR
• Court: Kansas Court of Appeals

151 S.W.2d 494

235 Mo.App. 939

T. H. WALTON, JR., DEFENDANT IN ERROR, v. A. B. C. FIREPROOF WAREHOUSE COMPANY, A CORPORATION, PLAINTIFF IN ERROR

Court of Appeals of Missouri, Kansas City

May 5, 1941

Error to Jackson Circuit Court.--Hon. Joseph F. Kiernan, Special Judge.

AFFIRMED.

Judgment affirmed.

James B. Nourse for plaintiff in error.

(1) The trial court erred in overruling defendant's request for a peremptory instruction, in the nature of a demurrer to the evidence. (a) The evidence was insufficient to show that defendant accepted plaintiff's goods as a common carrier for shipment to Joplin, Missouri. 1. The decisions holding a moving and transfer company liable as a common carrier apply only to cases where they are actually engaged in moving goods. Thompson v. New York Storage Co., 97 Mo.App 135, 70 S.W. 938; Jaminet v. American & Moving Co., 109 Mo.App. 257, 84 S.W. 128; Collier v. Langan & Taylor Storage & Moving Co., 147 Mo.App. 700, 127 S.W. 435; Campbell v. A. B. C. Storage & Van Co., 187 Mo.App 565, 174 S.W. 140. 2. When such company receives goods as a warehouseman, it is liable only as such, in the absence of an agreement to accept the responsibility of a common carrier. Train v. A. T. & S. F. Ry. Co., 253 S.W. 497. 3. In order for such company to be held responsible as a common carrier, it must have accepted the goods as such a carrier. 13 C. J. S. 26-27. 4. A mere forwarder is liable only upon a showing of negligence upon his part. 13 C. J. S. 41. 5. The mere receipt of goods by a warehouseman, to be forwarded to another point, does not constitute the warehouseman a common carrier. 67 C. J. 445. (b) Even if defendant were regarded as a common carrier, it would not be liable, because it had delivered the goods to a connecting carrier, and the same had been destroyed while in the possession of the connecting carrier, without negligence on the part of either carrier. 1. Defendant was not obliged to carry goods beyond the limits of its regular territory, but was entitled to turn over such goods to a connecting carrier for continuance or completion of shipment. 13 C. J. S. 65-66. Coles v. Central R Co., 86 Ga. 251, 12 S.E. 749; Hutchinson on Carriers (3 Ed.), Secs. 226, pp. 240-241. 2. At common law, in the absence of a special contract for through shipment, an initial carrier was not liable for a loss occurring on a connecting carrier's line. Hutchinson on Carriers (3 Ed.), Secs. 228-231, pp. 242-249; Grover, etc., Sewing Machine Co. v. Missouri Pacific R. Co., 70 Mo. 672; Coates v. U. S. Express Co., 45 Mo. 238; Lord, etc. , Co. v. Texas, etc., R. Co., 155 Mo.App. 175, 134 S.W. 111; McLendon v. Wabash R. Co., 119 Mo.App. 128, 95 S.W. 943; Eckles v. Railroad, 112 Mo.App. 240, 249; Crouch v. Railway, 42 Mo.App. 248, 249. 3. There was no contract for "through shipment" in this case. Miller v. Missouri, &. & T. Ry. Co., 157 Mo.App. 638, 138 S.W. 902; Central American S. S. Co. v. Mobile & O. R. Co., 144 Mo.App. 43, 128 S.W. 822, 825; Marshall v. Railway, 176 Mo. 480, 75 S.W. 638; Western Sash Co. v. Railway, 177 Mo. 641, 76 S.W. 998; Davis v. Railway, 126 Mo. 69, 28 S.W. 965; Eckles v. Railroad, 112 Mo.App. 240, 249-250, 253; Goldsmith v. Railroad, 12 Mo.App. 479; McCarthy v. Railroad, 9 Mo.App. 159, 166; Hutchinson on Carriers (3 Ed.), Sec. 252, p. 256. 4. Nor is liability created in this case by statute, either Federal or State. Tubize Cattilon Corp. v. White Transp. Co., 6 F.Supp. 15; Sunshine Hosiery Mills v. Chambers Truck Co. (Tenn.), 107 S.W.2d 515; Sec. 3288, R. S. Mo. 1929; Scott v. Railway, 127 Mo.App. 80, 104 S.W. 924. (2) The court erred in giving plaintiff's Instruction No. 1, because the evidence was insufficient to support a finding either that defendant accepted plaintiff's goods as a common carrier or that defendant made a contract for "through shipment." (3) The court erred in refusing to admit defendant's Exhibit D in evidence. (a) Besides being available to refresh the witness's recollection said exhibit, if otherwise competent, was admissible as independent evidence. 70 C. J. 583; 70 C. J., Sec. 746, pp. 580-581; 70 C. J., Sec. 770, pp. 598-599; State v. Bowman, 199 S.W. 161, 272 Mo. 497. (b) The exhibit was a memorandum admissible as a private record made and kept in the usual course of business. 22 C. J., 893; Durnford v. Chicago, B. & Q. R. Co., 213 Mo.App. 93, 246 S.W. 973; Smith v. Nicholson, 221 Mo.App. 428, 289 S.W. 349. (c) The exhibit was not self-serving; it was made in the usual course of business and was a part of the res gestae. Aly v. Terminal R. Assn., 336 Mo. 340, 78 S.W.2d 851, 856.

Harry B. Jenkins and Walter A. Raymond for respondent.

(1) The trial court properly overruled defendant's request for a directed verdict. (a) The evidence was sufficient to show the defendant accepted plaintiff's goods as a common carrier for shipment to Joplin, Missouri. Walton v. A. B. C. Fireproof Warehouse Co. (Mo. App.), 124 S.W.2d 584; 13 C. J. S., p. 31; 9 Am. Juris., p. 434, sec. 8; Kettenhofen v. Globe Transfer & Storage Co., 70 Wash. 645, 127 P. 295; State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99, 100, 101. (b) Even if the Sunflower lines be considered a connecting carrier, it was the agent of appellant for whose acts appellant is as liable as if appellant did the hauling itself. Eckles v. Missouri P. Ry. Co., 112 Mo.App. 240, 87 S.W. 99, 101; Scott County Milling Co. v. St. Louis, I. M. & S. R. Co., 127 Mo.App. 80, 104 S.W. 924, 927; Simmons Hdw. Co. v. St. Louis, I. M. & S. Ry. Co., 140 Mo.App. 130, 120 S.W. 663, 664; Bockserman v. St. Louis & H. Ry. Co., 169 Mo.App. 168, 152 S.W. 389, 390; Keithley & Quinn v. Lusk, 195 Mo.App. 143, 189 S.W. 621, 622; Keithley v. Lusk, 190 Mo.App. 458, 177 S.W. 756, 758, 760; Lee v. Wabash R. Co., 118 Mo.App. 476, 94 S.W. 991, 992. (2) Plaintiff's Instruction No. 1 was supported by the evidence and was properly given. (3) The court properly refused to admit defendant's Exhibit "D" in evidence. Nall v. Brennan, 224 Mo. 565, 23 S.W.2d 1053, 1057; Robertson v. Brotherhood of Locomotive Firemen and Enginemen, 233 Mo.App. 159, 114 S.W.2d 136, 142; White v. Hasburg (Mo. App.), 124 S.W.2d 560, 565; Williams v. Lack, 328 Mo. 321, 40 S.W.2d 670, 675; Aly v. Terminal Ry. Assn. of St. Louis, 336 Mo. 340, 78 S.W.2d 855, 856; Day v. Banks, 143 S.W.2d 68, 74.

OPINION

BLAND, J.

--This is an action to recover damages for the loss of household goods belonging to the defendant in error, plaintiff below, which he alleges were delivered to the plaintiff in error, defendant below, as a common carrier.

Plaintiff below recovered a verdict in the sum of $ 688.35, but remitted therefrom the sum of $ 13.41, the amount of the transportation charges. A judgment was entered in favor of plaintiff below in the sum of $ 674.94. Defendant below has brought the case here by writ of error. This is the second appeal in the case. [See Walton v. A. B. C. Fireproof Warehouse Co., a corp., 124 S.W.2d 584.] Hereinafter the parties will be referred to as they were designated in the court below.

The goods in question were delivered to the defendant in Kansas City for shipment to Joplin but it turned them over to a trucking company at Kansas City, known as the Sunflower Lines, Inc., which contracted with defendant to transport them to Joplin. Defendant took a bill of lading from the trucking company, in which defendant was described as the shipper and plaintiff the consignee. At Arma, Kansas, the Sunflower Lines truck, in which the goods were being transported, collided with a train and most of the goods were destroyed. The bill of lading showed the declared value of the goods to be 10 cents per pound and the Sunflower Lines, Inc., attempted to settle on this valuation and, in this connection offered, in full settlement, the amount of $ 78.79. Plaintiff refused to accept this amount on the ground that he was entitled to the full value of the goods, which, he claimed to be $ 688.25.

Defendant is engaged in the storage, packing and the forwarding of goods and carrying goods as a common carrier. It owns three warehouses in Kansas City.

When the case was here before plaintiff was seeking to recover on the ground of negligence. After the judgment was reversed and the cause remanded, plaintiff amended his petition so as to allege the delivery of the goods in good condition to the defendant, a common carrier, and the failure of defendant to redeliver them. In other words, the amended petition attempted to recover on the insurer theory of liability. In the last trial, as in the former one, the case was defended on the ground that the defendant received the goods as a warehouseman, not as a common carrier and, as such, acted as plaintiff's agent in selecting a carrier to transport them from Kansas City to Joplin.

Plaintiff was employed by the Universal Credit Company, located in Kansas City, and had been transferred by it to Joplin. The employer customarily provided the moving of household effects of their employees when they were transferred and it did so in this instance.

J. A. Clark, the manager of the local office of the Universal Credit Company in Kansas City, made all arrangements for the shipment of plaintiff's goods. The employer had often used the defendant to transport goods of its employees when the latter were transferred.

Defendant insists that the court erred in refusing its instruction in the nature of a demurrer to the evidence, offered at the close of all of the evidence, for the reason, among others that there was no evidence that the defendant accepted plaintiff's goods as a common carrier for shipment to Joplin or that it undertook, by contract, to ship the goods as a common carrier in this instance, or, that it held itself out so as to lead the public or,...