83 Mo. 112 | Mo. | 1884
Lead Opinion
This snit was instituted to recover the value of a box and its contents shipped from San Francisco, California, to Moberly, Missouri. The petition contained two counts. The first charged defendant with a breach of duty, as a common carrier, in failing to notify plaintiff, or her agent, of the arrival of said box at Moberly, in failing to transport said box from St. Joseph, Missouri, to Moberly, and deliver the same, and its subsequent destruction by fire, at defendant’s freight depot at Moberly.
The second count charged defendant with a breach of its duty, as a warehouseman, alleging that said box, after it reached Moberly, was stored by defendant in an unsafe, insufficient and highly inflammable building, to which fire was communicated by sparks and coals of fire which were negligently allowed to escape from an engine belonging to and operated by defendant.
The answer of defendant admitted that it was a common carrier, and received said box at St. Joseph from the Central Pacific Railroad, to be transported to Moberly; denied the other allegations of the petition, and specially pleaded the release and bill of lading, as hereinafter set forth, and that after safely transporting the box to Moberly, on the 1st day of April, 1881, in consequence of plaintiff’s failure to call for and receive it, the box was placed in a safe, secure and suitable warehouse, where, without defendant’s fault, it was on the 6th of April, 1881, destroyed by fire.
The following is appellant’s statement, which respondent’s counsel concedes to be fair in all particu
On the 7th day of March, 1881, the plaintiff shipped one case of household goods from San Francisco, California to Moberly, Missouri, prepaying the freight therefor ($13.50) for the entire distance. The contract of shipment was made with the Central Pacific Railroad Company. At the time of making such shipment plaintiff executed a release, wherein it was stated that in consideration of the transportation of said case of household goods at the usual and customary rates charged for goods of the same class, when the carriers are released from their extraordinary liability as such, the same being less than the current rates for the same class of freight shipped under the carrier’s legal responsibility, said railroad company and its connecting lines were released from all liability to plaintiff, or to the owner of the property, for loss or injury to said goods while in transit, except such as might result from the negligence of the carrier. At the same time the Central Pacific Railroad Company executed and delivered to plaintiff a through bill of lading for the entire transportation of said case; which bill of lading contained, among others, the following conditions:
1. That the goods must- be removed from the station during business hours on the day of their arrival, or be stored, at the owner’s risk and expense, and in the event of their destruction or damage, from any cause, while in the depot, no damages should accrue therefor.
2. That the carriers should not be responsible for loss or damage to goods from fire, from any cause whatever, while in transit or at stations.
The case of goods was transported by the Central Pacific Railroad and its connecting lines to Kansas City, Missouri, and was there delivered to the defendant. It left Kansas City on the railroad of defendant on the 30th of March, 1881, and arrived at its destina
The building had been rebuilt in 1869, reshingled, painted, and put in thorough repair. It was in good condition at the time of the fire; was secure as to the weather or thieves, had good strong doors which were securely locked at night, and was carefully watched and tended by careful, prudent, and competent men in defendant’s employ. At the time of this fire the locomotive ezigines of defendant were all in good order, manned and operated by careful, competent and experienced engineers, and supplied with all the best known, approved and modern appliances for the prevention of the escape of sparks and fire, and on said day such appliances were izi perfect working order and were carefully handled and inspected by competezit znen employed by defendazit for that purpose. The Missouri, Kansas & Texas Railroad, a railway line then operated separately and under an independezzt managezzient, crossed defendant’s tracks near the freight depot in question, and one of the engines of that company, then in bad order, threw sparks upon the building while passing it, which set it on fire and burned it down.
There was no conflict in the testimony, either as to the contract of shipznent, which fact was admitted by plaintiff, the age and condition of the freight depot or
The following instructions were given in the case:
1. The jury are instructed that when the plaintiff did not, for any cause, demand and receive her goods, after their arrival at Moberly, it then became and was: the duty of defendant to store them in a reasonably safe! warehouse, under the charge of competent and careful servants, ready to deliver them when called for; and in the selection of said warehouse, and the care and custody of said goods, the defendant was bound to use ordinary care and diligence, such as a prudent person would exercise in the care and control of his own property of a like nature, under similar circumstances, and such care should be in proportion to the injury or loss likely to be sustained by any omission of such care on his part. And if the jury believe that the defendant did not so store, care for and protect said property, and that by reason of its want of such care and diligence plaintiff ’ s goods were destroyed, your finding must be for the plaintiff upon the second count in plaintiff’s petition.
The court of its own motion gave the following:
The jury found a general verdict for plaintiff, on which the court rendered a judgment, from which defendant has appealed. The first count,- and all questions relating to it, are out of the case, the court having instructed the jury to find for defendant on that count; and this also answers and disposes of all objections to the verdict, as being general.
It has been a vexed question when the liability of a railroad company as a common carrier of goods ceases, after the arrival of the goods at their destination; but the weight of authority is, that on the arrival of the goods at their destination, after they have, been discharged from the cars, the liability of the railroad company as a common carrier ceases, and it becomes a bailee for hire. Norway Plains Co. v. R. R. Co., 1 Gray 265; Rothchild v. R. R. Co., 69 Ill. 164; M. D. T. Co. v. Hallock, 64 Ill. 284; McCarty v. R. R., 30 Penn. St. 247; Shenk v. Propeller Co., 60 Penn. St. 109; Mohr & Smith v. R. R. Co., 40 Iowa 580; R. R. Co. v. Kidd, 35 Ala. 209; Jackson v. R. R., 28 Cal. 268.
The contrary has been held by the courts of last resort of New. Hampshire, Wisconsin, Kentucky, New Jersey, Louisiana, Ohio and Kansas; but as early as 1858, the Supreme Court of this state, in Holtzclaw v. Puff, 27 Mo. 395, held that: “After the hemp (shipped over the H. & St. J. R. R.) reached the terminus of the road, and was removed from the cars, a different and less onerous obligation was assumed, and they became liable as warehousemen and forwarding agents, and as such,
There is also a conflict of authority on this question, but in Rankin v. Pac. R. R. Co., 55 Mo. 168, it was held that: “The rule in respect to notifying consignees of the arrival of goods does not apply to railroads, where the goods are delivered on time. They are not required, as carriers by wagons, to deliver at the place of business or house of the consignee, nor as carriers by water, to notify the consignee of the arrival at the wharf. Their route is confined to a track, and the delivery must be at a depot or by the roadside, and if there be no one to receive them, they may store them without charge for a reasonable time, till the consignee calls for them. It is the duty of the consignee to do so without notice, as the usual certainty of the arrival of the train renders such notice unnecessary.5 ’ A warehouseman or other bailee for hire is only answerable for a loss occasioned by the want of ordinary care and skill. Angelí on Carriers, sec. 415 ; Story on Bailments (9 Ed.), sec. 444. But a warehouseman may contract for a more restricted liability than that which the law imposes upon him. He may, by agreement, restrict his liability, except as to a loss occurring through fraud, or want of good faith. Angelí on Carriers (5 Ed.), sec. 59; Alexander v. Greene, 3 Hill 9; Wells v. Steam Nav. Co., 2 Comstock 208; Story on Bailments (9 Ed.), sec. 79.
But conceding, for the sake of the argument, that the correct doctrine is that announced in the leading
In the case of Huston et al. v. Peters et al., 1 Met. (Ky.) 561, the court said: “But may not the manner of ¡delivering the goods, and consequently, the period at ¡which the responsibility of the carrier will cease, in some ¡measure at least, depend upon and be governed by the ¡custom of particular places, and the usage of particular ¡trades, or upon a special contract between the parties?” ¡Again: “Primafacie there must be actual delivery, or ¡in the case of a carrier by water, a landing at the wharf ¡or usual landing place, with due and reasonable notice ,to the consignee of the arrival of the goods. But the rule .may be varied by contract, or affected by a well established, reasonable and generally known custom and usage.”
■ The judgment is reversed and the' cause remanded, and before a retrial, it would be well for plaintiff to' amend her petition, wherein it alleges that the warehouse was set on fire by sparks escaping from' defendant’s engine.
Dissenting Opinion
dissenting. — There is a conflict of authority as to whether it is the duty of a common carrier as such when goods transported arrive at their destination, to notify the consignee or owner of their arrival, and allow such owner a reasonable -time after such notice to remove them. Whatever conflict and diversity of opinion may exist upon this question, an examination of the authorities will show, that they agree in announcing the principle that when goods arrive at their destination, it is the duty of the carrier to deliver them to the owner or consignee, if he is there to receive them, and, if he is not there, to deposit them in a reasonably safe and secure place for the owner. I will not
The rule recognized also fixes the duty and obligation upon the carrier, as such, either to deliver the goods to the owner or store them in a reasonably safe and secure place for him. When the goods are so stored or deposited, the duty of the carrier is at an end, and that of warehouseman begins. While it may be conceded that a warehouseman or' bailee for hire may restrict his liability by contract, it is at the same time established law, that the carrier cannot exempt himself from liability for a loss or injury occasioned by his negligence.
If it be his duty as carrier to deposit the goods for the owner, in the event of his not being present to receive them, or of his not being found, the carrier cannot, by contract, exempt himself from the consequences of his own negligence in not depositing the goods in a reasonably safe and secure place. In so far as the special contract set up by defendant exempted it from the performance of this duty, it is void.
I understand the plaintiff’s cause of action, as stated in the petition to be founded upon the charge that defendant did not ■ use ordinary care in selecting a suitable place for the deposit of the goods, but, on the contrary, carelessly and negligently deposited them in an unsafe and unsuitable warehouse, whereby they became lost to plaintiff.
The court below tried the case on this theory, as evidenced by the instructions given, and I think the theory was a correct one.