167 Mo. App. 729 | Mo. Ct. App. | 1912
This is an action by plaintiff to recover damage to merchandise said to have béen delivered in good order to defendant as a common carrier, it being averred that in violation of its undertaking, defendant had failed and neglected to deliver it in good order to the consignees at its destination and suffered the same to become greatly damaged in transportation. It is stated in the petition that the original consignees had assigned and conveyed to plaintiffs all their claim and right of action against defendant for the loss and damage to the merchandise aforesaid, whereupon plaintiffs demand judgment for the amount with interest and costs.
The answer, admitting the copartnership of plaintiffs and that defendant is a corporation and common carrier, operating its line of railroad between East St. Louis, Illinois, and Jackson, Tenn., defendant denies all the other allegations in the petition.
The cause was tried before the court, a jury being waived. No declarations of law were asked or given.
At the conclusion of the trial the court found for defendant and rendered judgment accordingly. Prom this plaintiffs have duly perfected their appeal.
From a stipulation filed in the case and which was introduced in evidence at the trial, it appears that
Following the introduction and reading of this stipulation, a large volume of oral testimony was in
The trial court handed down a memorandum in connection with his finding in the case, which, while not in the bill of exceptions, is brought before us by appellants.
The case is before us on a general finding — or verdict — by the court; as one coming before us and presented upon a general verdict.
The solé question in the case is one of fact; that is, whether the merchandise was damaged before it came into the hands of defendant. The court, in his written memorandum, sets out his reason for finding that the goods were not damaged while in the custody of defendant or in transit, and concludes that plaintiffs cannot recover. This finding for defendant on the facts is conclusive on us'; the weight of the evi
Counsel fo,r appellants contend that this is not an action for negligence but one founded on the common law liability of defendant as a common carrier. We think it clear from the petition that plaintiffs founded their right of action on the common law liability- of the carrier. But inasmuch as the learned trial court found that the damage to the shipment did not occur while the goods were in the charge of the carrier, it is here immaterial whether the case pleaded is on the common law liability or on the negligence of the carrier. The contention of learned counsel for appellants seems to be, either that this recital in the bill of lading constitutes an estoppel or that the dray ticket and the bill of lading made a prima facie case that the merchandise was in good order when received by respondent, and that this prima facie case had not been overcome by any substantial testimony. It will be noted that the receipt on the dray ticket does state that the articles were received in good order, but that same receipt further sets out the articles were in cases. By the stipulation of facts it was also agreed that the bill of lading was later issued for the merchandise by defendant in exchange for the dray ticket. It is distinctly set out in this bill of lading that the contents and value of the merchandise in the cases were unknown, and that the shipment was “in apparent good order.”
It is stated by an accepted writer on the law of carriers, treating of recitals in bills of lading, that, “It has likewise been determined that the usual recital in such instruments that the goods are in good order has reference only to the external appearance, either of the goods themselves or of the packages into which they are put. Hence, it is always competent for the carrier to show, notwithstanding such an ad
Tbe judgment of tbe circuit court is affirmed.