Kansas City Transfer Co. v. Neiswanger, 18 Mo. App. 103

Kansas City Transfer Co. v. Neiswanger

18 Mo. App. 103 | Mo. Ct. App. | 1885

Lead Opinion

Opinion by

Ellison, J.

The plaintiff as indicated by its name does a transfer business in Kansas City. The suit is brought to recover the amount of the freight bill and $1.50, in addition, for hauling from the depot to defendants’ place ■of business. The suit is based on the idea that plaintiff is a connecting line of common carriers as contemplated by the shipment from Canal Dover to Kansas City, and as such had the right to receive the property from the Missouri Pacific Railway at the depot, paying all back ■charges, and transport them.to the consignees’ particular locality in Kansas City. A reference to plaintiff’s evidence in the statement of' this case clearly shows this. There is nothing to show that it and defendants ever had a business transaction prior to this. Its custom and contract with the Missouri Pacific is not shown to have any ■connection with defendants.

It is the law that if goods are delivered to a carrier for the purpose of being carried to a point beyond the terminus of its route, and for that purpose to be by him ■delivered to a connecting carrier in order to continue the •carriage, or where it becomes necessary for that purpose, to make successive deliveries, from one to another upon a continuous line or succession of carriers, the first and ■each succeeding carrier becomes the agent of the owner of the goods, to make delivery to the next carrier. Hutchinson on Carriers, section 108.

Hence if the contract of shipment made at Canal Dover, was not fulfilled until the property was delivered ;at defendants’ place of business in Kansas City, then it was plaintiff’s duty to receive the goods from the railway company and transport them to defendants, and its action is well founded ; if, however, the contract was performed by the delivery of the property at the railway ■depot in Kansas City, then plaintiff was not a connecting *112carrier and is not entitled to recover on the theory of the case upon which it was evidently instituted.

The supreme court of Missouri in the case of Rankin v. Missouri Pacific Railway Co. (55 Mo. 167), says: “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 wagon, to deliver at the place of business or house of consignee, nor as carriers by water, to notify the consignee of the arrival at the wharf. ” And the court of appeals at St. Louis approved of the following instruction, in the case of Eastin v. St. L. & I. M. Ry. Co., (12 Mo. App. 386): “You are further instructed that the delivery contemplated and required by this contract, does not mean a delivery of the merchandise at the place of business or house of the consignees. in New Orleans, but rather at the depot in the city of New Orleans of the last connecting line of railroads employed by defendants to complete the carriage.”

There is no question in this case as to notice, nor any question as to the arrival of the goods in the usual and ordinary time required in that distance, so as to, in case of railroads, dispense with notice; it evidently turns on the question as to what was a compliance with the contract of shipment from Canal Lover, or where was the place of delivery of the goods.

It is the duty of the carrier to deliver to the next succeeding carrier in the line of transportation to the point of destination, and if such carrier does not se deliver, it is liable. But it would hardly have been contended or thought of perhaps, if the Missouri Pacific-Railway company had refused to deliver the goods to plaintiff, it would have been liable to an action for a breach of its duty as the agent of defendants under the above rules. Its duty was unquestionably jierformed by safely storing the goods for defendants at its depot. Richardson v. Rich. 104 Mass. 156.

There is nothing in plaintiff’s evidence going to show any authority or right in plaintiff to haul this property or pay the freight bill, and a demurrer to the testimony *113would have been properly sustained. Defendants however throw into the case a question of fact. They introduce evidence for the first time, tending to prove “that for some time prior to February 1, 1881, plaintiff had been in the habit of hauling freight belonging to the defendants from the depot in Kansas City to their place of business ; that about February 1, 1881, they notified plaintiff’s collector, whose business it was to collect the accounts, that the plaintiff would be no longer authorized to haul defendants’ freight, and not to haul any freight belonging to defendants any more.- That all freight consigned to defendants after February 1, 1881, was hauled by themselves, and no freight had been hauled by plaintiff except these goods.” • This introduces into the case a question, distinct from the one discussed, viz.: the liability to pay plaintiff for the hauling on account of employing them to do it; this is a different question from that of implied liability to a connecting carrier. If plaintiff had been in the habit of hauling defendants’ goods from the depot to their place of business, and defendants recognized their acts in this connection, .it .would, in the absence of anything further, render defendants liable for the price of the hauling in this case. But, considering the notice to the collecting agent as insufficient to bind plaintiff, there are yet the facts of its ceasing to haul from February 1 to May 12, and defendants’ hauling their own goods, which are sufficient to leave a jury at liberty to find that plaintiff had notice of the revocation of authority to haul. There was, then, at the close of defendants’ testimony, an issue of fact concerning the liability of defendants for the $1.50, charged for hauling, and that only, for there is nothing said, directly or indirectly, as to plaintiff’s habit of paying bills for defendants.

From the foregoing it follows, it was error to give plaintiff’s first instruction, and refusing defendants’ instructions No. 7 and 9. No. 8 was properly refused as it stands ; for it asserts there was no proof as to the hauling. The instruction given by the court of its own motion is undoubtedly under the view that the plaintiff was a con*114necting carrier, and as sucli had a right to haul the goods and pay the back freight, without regard to express authority from defendants. It does not put the hypothesis of'belief as to plaintiff having hauled goods prior to February 1, but it unquestionably is on the theory that plaintiff, in the absence of notice not to, had a right to transport as connecting carrier, under the implied agencies between carriers and consignees. We' think plaintiff did not have the right to receive the goods and pay the back charges unless authorized so to do, disconnected from the obligation of a carrier.

The judgment is reversed and the cause remanded ;

Philips, P. J., concursHall, J., dissents.

Dissenting Opinion

Dissenting opinion of

Hall, J.

The bill of exceptions in this case contains only the tendency of the evidence, and does not contain the entire evidence. It appears from the said bill of exceptions that the plaintiff introduced evidence tending to show “that it was customary for the plaintiff as a common carrier, to pay the carrier, from which they received goods,the freight and back charges and collect the amount from the consignees, and for the consignees to put in their claims against the carriers for reclamations and damages.” I agree with the majority of the court in holding that, had this been the only evidence touching the implied request by defendants of the plaintiff to render the services sued for in this case, the judgment of the circuit court should be reversed; and I fully concur in the reasons given, in the opinion of the majority of the court, in support of such holding.

But the defendants, as shown by the bill of exceptions, introduced evidence tending to show “that for some time prior to February 1, 1881, the plaintiff had been in the habit of hauling freight belonging to the defendants from the depots in Kansas Qity to their place of business.”

Now the inference which I draw from this record-statement of the tendency of the evidence to show such a *115babit, is that the babit was in accordance with and not contrary to the ciostom of plaintiff in proof.

If my inference be correct, the plaintiff bad a right, implied from bis babit established by the defendants’ evidence, to continue in said babit, until notified by defendants to desist therefrom. As to whether or not such notice bad been given to plaintiff by defendants, was an issue of fact, which was submitted in the declarations of law given by the court. That issue was determined by the court in favor of plaintiff. That finding is supported by the evidence.

For these reasons I am forced, with some diffidence, but with a clear convictiou of the correction of my conclusion, to dissent from the judgment of this court reversing the judgment of the circuit court, it being, as I think, for the right party.