Weaver v. Southern Ry. Co.

• Decision Date: 12 January 1909
• Citation: 135 Mo. App. 210,115 S.W. 500
• Parties: WEAVER et al. v. SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

115 S.W. 500

135 Mo. App. 210

WEAVER et al. v. SOUTHERN RY. CO.

St. Louis Court of Appeals. Missouri.

January 12, 1909.

1. CARRIERS (§ 121)—LOSS OF GOODS—CONTRIBUTORY NEGLIGENCE.

While a shipper must bear the loss resulting solely from a misdirection of goods, the carrier is liable when guilty of negligence without which, notwithstanding the shipper's mistake, the loss would not have occurred.

2. CARRIERS (§ 121)—CARRIAGE OF FREIGHT— MISDIRECTIONS—DUTY OF CARRIER.

Where shipping instructions on goods are not clear, it is the carrier's duty, unless an emergency arises, to hold them and ask further instructions from the shipper.

3. CARRIERS (§ 177)—FORWARDING AGENTS— DUTIES.

While the obligation of a forwarding agent as to the safety of the goods is usually that of ordinary care only, yet a carrier who undertakes to transport goods over its own line and then forward them over another is liable as insurer for loss or damage resulting from any unnecessary breach of duty or deviation from forwarding instructions.

4. CARRIERS (§ 172)—CONNECTING CARRIERS— LOSS OF GOODS—LIABILITY AS FORWARDER.

A carrier accepting goods to be forwarded over another line becomes the shipper's agent for that purpose.

5. CARRIERS (§ 132)—LOSS OF GOODS—DEVIATION FROM INSTRUCTIONS — ACTIONS — BURDEN OF PROOF.

The burden is on a carrier deviating from shipping directions to show that such deviation did not contribute to the loss of the goods.

6. CARRIERS (§ 123)—LOSS OF GOODS—CAUSE —LIABILITY.

A carrier was liable for loss of goods where, though they were improperly directed by the shipper, they would have reached their intended destination but for the changing of the directions by the carrier's agent.

Appeal from St. Louis Circuit Court, Jesse A. McDonald, Judge.

Action by Thomas B. Weaver and others against the Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

McPheeters & Harris, for appellant. F. M. Curlee, for respondents.

NORTONI, J.

This is an action in the nature of trover as for conversion of plaintiffs' goods. A jury was waived, and the cause submitted to the circuit court on an agreed statement of facts. Plaintiffs prevailed, and the defendant prosecutes the appeal.

The action predicates upon the defendant's breach of duty in respect of its obligation as common carrier and forwarding agent. Instead of attentively following plaintiffs' instructions as to the forwarding of its goods, the defendant neglected its duty in that behalf, and exercised dominion over the goods by substituting other shipping directions for those contained in the bill of lading, in consequence of which the goods were lost. Plaintiffs are merchants located at Corinth, Miss., and the defendant railroad company is a common carrier operating between that point and Memphis, Tenn. Plaintiffs, desiring to ship certain goods to F. Heitkamp, Davenport Station, known as "Bracken Post Office," in the state of Texas, delivered the same to the defendant at Corinth, Miss., to be transported to the city of Memphis, Tenn., and there, together with shipping instructions concerning the same, delivered by it to the St. Louis, Iron Mountain & Southern Railway Company for transportation over its line. The goods were marked and consigned in the bill of lading to "F. Heitkamp, Red River County, Davenport, Texas, via Bracken, I. M. [St. L., Iron Mountain & Southern Railway Company] I. & G. N. [International & Great Northern Railway Company]." Defendant accepted the shipment, and for a sufficient consideration contracted to transport the same, in accordance with the instructions embodied in the bill of lading, to Memphis, Tenn., and there deliver the same to the St. Louis, Iron Mountain & Southern Railway Company. It appears there are two towns in the state of Texas bearing the name of Davenport, one of which is a station on the line of the International & Great Northern Railway Company. This town of Davenport is in Comal county, and it is known as well by its post office, as Bracken. The other place bearing the name of Davenport is an inland town situate in Red River county, several miles from any railroad. Goods intended for the last-named place are carried to Paris, Tex., a town on the Texas & Pacific Railway, and there delivered to the consignees, who haul the same in private conveyances to the inland town. When freight consigned to either Davenport or Bracken, or both, is delivered to the International & Great Northern Railway Company, it is uniformly carried to the town of Davenport, or Bracken, in Comal county. It will be noted that, although the goods were consigned to "F. Heitkamp, Red River County, Davenport, Texas," the shipment was in fact intended for "F. Heitkamp, Davenport, Bracken Post Office, Texas," situate in Comal county. Therefore the direction contained in the bill concerning Red River county was error. However this may be, it appears from the agreed statement that, had the goods been eventually delivered to the International & Great Northern Railway Company, they would no doubt have reached their proper destination, as the town of Davenport, Bracken Post Office, is situate on that line, and goods shipped over that road to either Davenport or Bracken usually reach their proper destination. Instead of delivering the goods at Memphis to the St. Louis, Iron Mountain & Southern Railway Company, with shipping instructions as received by it, the defendant's agent indorsed thereon, "destination, R. R. Paris." As changed, the bill read: "F. Heitkamp, Davenport, Red River County, Texas, destination, R. R. Paris." In accordance with the changed direction the St. Louis, Iron Mountain & Southern Railway Company transported the goods to Texarkana, and there delivered the same to the Texas & Pacific Railway Company, instead of the International & Great Northern Railway Company; and the Texas & Pacific Railway Company transported the same to Paris, Tex. No trace of them was found thereafter. At any rate, they were never delivered to the consignee. It is stipulated that the plaintiffs have never received payment for the goods, and a right of action for the default of the carriers, if any, resides in the plaintiffs.

It is argued on the part of defendant that the plaintiffs misdirected the goods, and therefore it is not responsible for the loss. It is said the loss occurred as a result of the carelessness of the plaintiffs in directing the consignment to Davenport, Red River county, Tex. There can be no doubt of the rule, which obtains in proper cases, to the effect that where a consignor misdirects the goods, and a loss results solely from such misdirection, it falls upon the shipper whose careless conduct induced it. This rule is just indeed, and it comports with the ends of precise justice, where the facts invoke its application. Congar v. Chic., etc., Ry. Co., 24 Wis. 157, 1 Am. Rep. 164; Lake Shore, etc., Ry. Co. v. Hodapp, 83 Pa. 22; Treleven v. Ry. Co., 89 Wis. 598, 62 N. W. 536; Feldstein v. Steamboat Company, 21 Misc. Rep. 60, 46 N. Y. Supp. 897; The Huntress, 2 Ware, 82, Fed. Cas. No. 6,914; 6 Cyc. 380; 5 Amer. & Eng. Ency. Law (2d Ed.) 370; 1 Hutchinson on Carriers, § 333; 2 Hutchinson on Carriers, § 677; 5 Amer. & Eng. Ency. Law (2d Ed.) 370; 6 Cyc. 380. However, in such cases it becomes the duty of the carrier to exercise care to discover the true destination of the goods, and it is not for him to assume, without consulting the consignor, to change the directions. When it becomes obvious to the carrier that an error has been made in directing the goods, or in the bill of lading, both good faith and reasonable prudence dictate that the carrier should hold the goods and consult the consignor as to more complete and definite instructions. In such cases it is not for the carrier to venture a guess as to what destination the shipper intended, and proceed to forward the consignment to a place he presumes to be the right one. Congar v. Railway Co., 17 Wis. 477; Guillaume v. Transportation Co., 100 N. Y. 491, 3 N. E. 489; 2 Hutchinson on Carriers (3d Ed.) § 677. And then, too, in order to affix the loss upon the consignor, it must have resulted from his negligent misdirection alone, unaided by a careless breach of duty on the part of the carrier or its agent. In those cases where the rule properly obtains the usual obligation of insurer incident to the relation of common carrier inheres, and the carrier is acquitted of this extraordinary responsibility only on the theory that it would be highly unjust to hold it to respond when the loss was entirely superinduced by the carelessness and inattention of the shipper in misdirecting the goods. Therefore, if the carrier or its agents interpose a careless or inattentive act which contributes to or commingles with the carelessness of the shipper, so that it may be truthfully said it was partly, at least, its fault in entailing the loss, the carrier will be required to respond on its original obligation of insurer. In other words, if the carrier himself has been guilty of some negligent act or omission without which, notwithstanding the fault of the owner, the loss would not have occurred, he will be liable. McCarthy v. Ry. Co., 102 Ala. 193, 14 South. 370, 48 Am. St. Rep. 29; Foard v. Atl., etc., Ry. Co., 53 N. C. 235 78 Am. Dec. 277; Wright v. Northern Cent. Ry. Co., 8 Phila. (Pa.) 19; The Huntress, 2 Ware, 82, Fed. Cas. No. 6,914; 1 Hutchinson on Carriers (3d Ed.) § 333; 5 Amer. & Eng. Ency. Law (2d Ed.) 370. The defendant should not be permitted to escape responsibility on the theory that plaintiffs were negligent in directing the goods to Davenport, Red River county, when it appears, as it does, that the loss would not have occurred except for the breach of duty on the part of defendant's...