Wichita Poultry Co. v. Southern Pacific Ry. Co.
| Decision Date | 05 November 1917 |
| Citation | 198 S.W. 82,197 Mo.App. 578 |
| Parties | WICHITA POULTRY COMPANY, Respondent, v. SOUTHERN PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Kimbrough Stone, Judge.
Judgment reversed and cause remanded. (with directions.)
Watson Gage & Watson for appellant.
H. R Lebrecht and A. J. Bolinger for respondent.
Plaintiff shipped a carload of chickens from Wichita, Kansas to San Francisco, California consigned to its agents Stewart & Stevens, a commission firm in the latter city. There was delay in delivery and this action was instituted to recover damages. Plaintiff prevailed in the trial court.
The case was tried by the court on an agreed statement of facts, by which it appeared that the Chicago, Rock Island & Pacific Railway Company was the initial carrier and defendant the destination, or terminal carrier. That while the chickens were on the way Stewart & Stevens sold them to Fred Deal at Oakland, California, and notified plaintiff, who immediately gave an order, by telegraph, to divert the shipment to Deal at Oakland and this order was complied with by defendant. But thirty-five hours before the car arrived at Oakland, Deal had notified Stewart & Stevens that he would not accept the chickens and they then asked defendant's division freight agent at San Francisco to continue the shipment to them at San Francisco as originally billed. They had authority from plaintiff to divert shipments, but defendant had no notice of such authority, or that they were even plaintiff's agents further than that they were merely consignees. This agent said he would do it, and handed the request to defendant's agent in the operating department, who informed him that it could not be complied with. No notice of this refusal was given to Stewart & Stevens and the car was duly set out at Oakland, and Deal notified next morning. He still refused to take it and defendant's agent at Oakland immediately, by telegraph, asked for orders from the initial carrier at Wichita, and, in response, was directed to comply with Stewart & Stevens' request to continue the shipment to them at San Francisco, the original destination, and this was done. It was agreed that the damages caused by this delay was $ 500, and that if the finding was for plaintiff, it should be in that sum.
While the law is that the consignee may be regarded by the carrier as the owner (nothing appearing to the contrary) (Smith v. Railroad, 145 Mo.App. 394, 406; Southern Exp. Co. v. Dixon, 94 U.S. 549; 1 Hutchinson on Carriers, sec. 177); yet where the carrier knows the shipper to be the owner (as in this case) he is bound to recognize the right of such owner to give orders diverting the shipment, while en route, to any other person than the one named as consignee in the bill of lading. [2 Hutchinson on Carriers, sec. 660.] And if he should deliver to the consignee, or to the latter's order, after receipt of an order from the owner consignor diverting the shipment to some other person, he would be liable to the consignor in conversion.
The facts agreed upon show that plaintiff was the owner and that he was recognized as such by both defendant and Stewart & Stevens. In considering the question of defendant's liability we must just of its action from the standpoint of its knowledge; for though it knew plaintiff to be the owner, the latter had not notified it that Stewart & Stevens had authority to divert the shipment, or were its agents. Therefore when defendant accepted and obeyed plaintiff's order diverting the shipment from Stewart & Stevens at San Francisco to Deal at Oakland, it was acting strictly within its legal obligation and duty. And when, through its agent, it accepted an order from Stewart & Stevens who were without right to give such order, it had a right, subsequently, to ignore it. For, judged by the facts which were within its knowledge, compliance would have been conversion.
When defendant's division freight agent informed the agent in the operating department of the request made by Stewart & Stevens, was it not reasonable and natural for him to say that they had no authority to make such request, that to comply with it would be to disobey plaintiff's order to divert to Deal and render defendant liable? When Stewart & Stevens found that Deal would not take the chickens, they should have...
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