*1 OF COURT Hines. & Elevator Co. only im not out in this case left The instruction damages expressly portant hut confined elements possible recovery single money child item of to minority might might during his have have earned parents parents. voluntarily his The are turned over money entitled to recover the value of services presumes sub its life is child, their minor and the law Railway, c. Mo. l. [Parsons to them. stantial value jury legal 296.] told the instruction, effect, This they damages, i. defendant, find e. .for unless find money probably have found that the child'would earned “by gone have own which would efforts; his parents,” and them benefit his directed to consider probabilities earning money so the child probabilities earning turning over his it it, turning parents them. in it or not over to to his This jury finding if the struction authorized a for defendant probability money earning against the found of the child parents, though paying voluntarily even to his might oc found other have would loss services respondents damages. ruling of casion substantial The right. court trial order is affirmed All the cause remanded. concur.
KEMPER MILL D. CO. v. WALKER ELEVATOR Appellant Director General
HINES, Railroads, . One, Division March Liability 1. INTEBSTATE SHIPMENTS: of Initial Carrier. The shipment initial carrier of an interstate is liable for the acts of connecting carrier, or terminal the Federal Uniform Lading Bills Act. Beconsignment by 2. -: -: at Carrier Terminal Point. The reconsignment shipment by an interstate the initial carrier Yol. OCTOBER TERM,
Kemper Mill & Elevator Co. v. Hines. point although points, the terminal other it does issue simply billing new bills of writes in new desti- commodity nation, consignee; is a and un- to the *2 delivery by shipper, less such was authorized the initial the carrier, upon consignee’s accept goods, the refusal to the is liable conversion, any subsequent therefor; as for a without demand delivery by shipper, but if such authorized the the initial carrier is not liable. Conversion; Way 3. -: -: Surrender of —:-: Bill. The obliged goods delivery by carrier is not make to of hauled it to (cid:127) designated point upon except production a the and surrender of lading, point re-consigns shipment of the bill if at such the point, shipper, by to another unless so authorized to do the goods consignee there, any delivers the to at time the without having lading possession, bill the of in its it is liable as con- for version. Eeconsignment. by goods shipped 4. -: -: Parol an Where interstate carrier are deliverable at the end its line to of the order consignor, consignor can, long of the the as he the holder of is agent goods bill the of authorize for his to receive the him, surrendering bill, delivery good without the and the will be rights carrier, parties as between him and the of third inter- vening. consignor’s authority agent Nor is the his to receive to delivery goods required writing, the of the to be in nor the does required writing fact the that bill of itself is to be in re- agent quire authority receiving goods the of the the thereunder writing. be in to completely -: -: Statute 5. of Prauds. After contract is a party,’ one cannot Statute executed the other invoke the goods pos- if the initial carrier Prauds. So surrendered consignee them at the end its line to the session authority consignor, delivery having given verbal the the completely executed, the Statute of Prauds cannot be invoked (cid:127) consignor liability by the to fasten on the con- carrier statutory required versation, authority even if law the of the agent writing. to receive such to be Lading. provision -: -: Alteration of Bill of 6. The the Lading (Sec. 8604.-g, Compiled Bill of Federal Uniform Act S.U. 1918) “any alteration, Stats. addition or erasure bill a authority issuing its issue without after from carrier same, writing bill, void, either or on the noted shall be what- purpose change, and nature of the ever be the and the bill shall according tenor,” original application enforceable be to has no agreements consignor shipment parol between to of a MISSOURI,' OF SUPREME COURT . ' Kemper Hines. & Elevator Co. agents of the notified, by parties are made to be goods consignor shipper’s receive bill to order production bill. surrender or carrier Agreement. Special Notifying Parol -: -: Purchaser: n required noti- purchaser to be The mere fact in, any right way gives or fled in no him bills of agent goods, receive, makes him the specially may consignor purchaser them; be receive consignor the end receive them authorized re-consign line, and on account initial carrier’s and to them may agency consignor agent, established as his and such parol testimony. \ (cid:127) provision Statutory -: -: -: Provision. Compiled (Sec. 8604-d, Lading U. S. Federal Bill of Act Uniform 1918) of a an order of the name Stats. that “the insertion in person limit the arrival of the shall be notified of purchaser negotiability notice of the bill or constitute rights equities person goods,” in the of such thereof of *3 bill, applies only purchasers of the and has no contests with shipper application the carrier and while contests between shipper of the is still the and holder bill. owner Testimony —.-: -:-: Custom. that it was custom
9. persons shipper’s bills as the all mentioned order parties goods arrived the end of to be notified when the at line, to to divert carrier’s authorize carrier interstate goods producing points, without the bills other shippers, competent special authority evi- from the is not dence. per per —-: -: Interest: Conversion. at six Interest cent
10. goods carrier, value of converted an annum on the interstate conversion, recoverable, the time of the in the discretion jury. -: -: Value of Goods Converted. Where the bill lad- 11. wrongful ing damages provides that the measure of in case of the consignee to the is the value of the shipment, testimony to their the time value at the competent, provision is not time their conversion in the being valid. Appeal Circuit B. from Jackson Court.—IIon. Tíos. Judge.
Buckner, Reversed remanded.
Yol. 293.] 91 TERM, 1921. y. Mill & Elevator Co. Hines.
William E. Lucas, W. F. Grady E. H. Evans, appellant. John H. Lucas for state,
(1) petition The does not facts sufficient a constitute cause of action evi- for conversion, wholly ap- dence fails to sustain a verdict therefor. The pellant’s request for an instructed verdict have should given and' the erred in court refusal there- appellant excepted (a) of, to which refusal, at theffime. petition allege does not refusal demand and shipment, deliver the nor does the evidence show any was made, without which, there can be conversion. Dictionary Nanson v. 93 Jacob, 340; Mo. 1 Bouvier’s Law (3 Rev.) p. 983; Lovelass v. 79 G-a. Polk v. Fowler, 134; 19 Dictionary (3 Rev.) Allen, 467; Law Bouvier’s (b) 4 R. taking, 3327; L.C. 290. There nowas tortious Cyc. without which there can be no conversion. 38 Solberg Ry. v. Railroad, 228 Pa. Inv. Co. v. Land Ry. Co., Fed. v.Co. French & Co., S. C. (c) appropriation indicating There was no use or right against respondent. claim, of Nanson Jacob, Ry Mo. 337; Fe Santa Co. Land Inv. Co., 247 Cyc. 268; R. L. Solberg C. 290; 38 v. Railroad, Schopp Ry. 228 Pa. Trust Co. v. Mo. Pac.
Ápp.
Sloane
v. Caroline
Railroad
126 N. C.
Ry.
v. Stocum & Southwestern
Co., 228 S. W.
Parker
Ry.
Bell Lumber Co. v. Northern
(N. S.)
L.
(2)
Wash.
R. A.
Error in ad-
incompetent
mission of
and immaterial-
offered
evidence,
*4
by
competent
respondent, and
refused
admit
and
appellant,
material
(a)
evidence offered
bills
The
were
in
issued
the name of
Louis
and
St.
Railway Company,
against ap-
& San Francisco
and
pellant,
respondent’s theory
were
inadmissible,
being writing they
by parol,
in
could
be varied
(b)
parol
Introduction of
evidence, checks, drafts cover-
ing price
paid
respondent
Republic
and
meal at
parol
Aurora, Missouri; of letters, exhibits
evidence
and
COURT OF
& Elevator
v. Hines.
self-serving
respondent,
were
and
all of which
by appellant,
tendency
prove
which
conversion
trier
misleading,
tending
attention
withdraw
any,
and loss,
of conversion
if
of the facts from
issue
R.8
ensuing
162;
105 Mo.
Dillon v. Hunt,
therefrom.
(c)
par.
Nellis,
C. L.
The evidence
49.
neither
property
there was
Joliet,
value
when
at East
at East
Joliet,
conversion nor markets
conjectural.
(3)
court
altogether*speculative
The
competent
rejection
evidence
material
erred
(a) Appellant’s
appellant,
contention
offered
“notify
F.
the use of the words
Jonas
ship-
notify party
could direct
Son” it
intended
re-
court
contention,
ments to
jected,
instruction,
This
of sale.
plea, rejecting
giving
striking
evidence,
out
(b)
admissible. 27
Evidence
custom was
App. 545;
Mo.
R. C.
Levi & Co. v.
183;
L.
v.
Bank of
891;
Bradford v.
227 S. W.
Commerce
Hines,
323;
281 Mo.
541;
Klein,
Elevator
Klein v.
Co., Mo.
Roses,
F.
192 Fed.
The Carlos
756;
Lowell v. Newman,
241 U.
Harold,
177 U.
Railroad Co. v.
665;
S.
Santa Fe
Marquette
Co.,
French &
Pere
v.
Railroad Co.
Rep.
given
express
(c)
41 C.
Proof of
vary
subsequent
did not
to' issuance
bills of
Valley
written contract. Pecos
Bank v. Evans-Snider-
Buel Co.,
Biesecker,
107 Fed.
Rowland
185 Fed.
v.
McGinty
517, Stark Electric Co. v.
(d)
v.
Bradford
Bank
refusing
erred in
admit
evidence of the condition
Philadelphia
of the meal
value
and Lowell and the
rejection
thereof. Lane v. Mo. Pac.,
App.
Streeper
Eddy v.
Abeln,
Mo.
v.
59 Mo.
Gallagher,
Baldwin,
Green v.
35 Mo.
cases
other
“Even
criminal
the rule
evidence of
is,
charged, may
one
be shown.”
crimes connected with
State
Tabor,
Harold,
58 Mo.
State
(4)
State
Rider,
Kemper Mill & Elevator Co. v. Hines. both, enlarge and the issue restrict tendered pleadings, (a) Enlarge do issues, recovery petition, limit the amount fixed (b) undisputed pleading is denied Declare what both proof and “that- defendant issued and delivered Ignore lading.” (c) and of use custom issues and express right delivery to and limit the indorsed, Ig- properly (d) surrender of bill necessity predicate right nore of demand refusal and production solely bills deliver endorsement of lading, (e) Limit of meal to East Joliet conditions point. evidence at that condition value Ry. 279 Co., 15; v. Mo. Schumacher Breweries Orris v. Rys. Mo. Black v. State
Co., 160; Co., 68'5; 247 Mo. 217 212 ex 244 Morrison, 211; v. Mo. Crow v. rel. Railroad, Hospital Mo. v. 266 Walker 610; Assn., Drake Mo. 11; App. v. 140 Mo. Lewis, 33; v. Baker, Summers 158 App. v. 222 Mo. v. Railroad, 303; Huff Radtke Co., Basket & Box 229 Mo. McGrath Co., v. Const. App. 165 Mo. respondent.
Hagerman & Jost (1) are bills of are contracts, The obliga- rights sole measure of p. U. 506; 4 Fed. Ann. tions of the Stat. defendant. Comp. p. 9289, 8604-a; Underwood sec. 1916, Stat. King Barbarin, v. v. S. W. Hines, Ry. Milling 190, Georgia 241 U. Co. Blish v. Ry. & Nav. 60 L. McGinn v. Ed. Ry. App. Mo. Pac. Co. v. Brockman Comm. (Mass.) Lewis N. E. 615; Aradalou Railroad, v. (Me.) Poultry Atl. Strahs Co. v. Ry. Supp. Co. 365; Cincinnati 184 N. Y.
N. Y. Cent., (Ky.) 875; M. K. & T. Railroad 186 S. W. Luke, (2) (U. S.) 1215. 61 L. Ed. 244 U. S. Ward, bills, they pertain owner- so far delivery being ship, transportation, con- destination or modified: may altered tractual, aontrolled, OF SUPREME COURT Hines. & Elevator Co. v. *6 217 (a) By parol Railroad, Tliee v. Wabash evidence. Eng. Ency. (2 Ed.) R. 4 540; 4 Law 567; S. Am. W. v. p. Co. 10 Vittuci 209, 210; C. J. 23, 21; L. sec. C. Fed. v. Ry., Delaware 1005; 238 Bark Pac. Canadian (U. S.) 783; Oregon L. Ed. 14 20 579, Co., Wall. Iron Ry., Ency. 2 v. Seaboard Airline Ev. Inman & 873; Co. Fed. 215 Co., S. 965; v. Ocean S. Vanderbilt (Matthews Dickinson 888; 1 Hutchinson on Carriers p. p. 1906) 332, 1 Miehie 178; Carriers, on 167, sec. Ed., prac- any alleged (b) any evidence of sec. 469. Nor Co. therewith. Coal & Dock custom tice or v. inconsistent Douglass, 248 Fed. The Rebecca 35; Transit 220 Co., Georgia Fed. 169 Co., Iron Coal 367; Fed. Ilirsch v. Ency. Ev. Mary Fed. 696; 2 The 155 580; Bradshaw, Ency. (2 Ed.) Eng. Kimball 1545; Am. & 4 Law 875; p. Nat. 400; R. C. L. 27, 25; v. Mo. sec. Brawner, 47 4 Ry., Carriers, 1 500; Mo. 132 Miehie Bank v. Pac. Mo. p. (c) alleged oral Nor evidence of sec. 865. 5,60, agreement understanding & Son, claimed notify plaintiff, party, to have been had with notify party authority control asserted shipments, now invoked orders are over and whose disposition removal defense defendant’s different to a manner and lading. 8604-g, p. positive Sec. terms of the bills Comp. Pioneer v. 1916; U. S. Trust Co. 9314, 8 Stat. Pettigrew Ry., Lynch, 224 106; Mo. Pac. W. v. 204 S. S. Harris W. P. & v. Coal 193 741; Co., M. Co. Coal (W. Va.) App. Belknap 658; 664; 91 S. E. Railroad, v. Express v. 122 427; N. E. Harwood- Smith, Southern Co. C(5. (La.) Mfg. Barley 573; 74 So. v. Illinois Cent, (Mass.) (d) Voghel v. 103 N. E. 287. Since Railroad, required writing by the statute, contract be provisions terms any could varied modified subsequent 8604-g, agreement. oral Sec. 8 U. S. Comp. 191 S. W. Stat. Walker Overland Georgia Ry. Milling A. F. & 60 Blish Co. (U.'S.) (3) Eby notify party .& Law Ed. Son as TERM, Yol. Hines. Mill & Elevator Co. v. over
in the bills had interest or justified in shipments, the defendant was plaintiff. dealing alleged agent with them as Comp. p. Supp. see. 8 U. S. Stat. Ann. 74, p. Stat. Comm.' 8604-d,8604-e; secs. Brockman 1916, 9312, p. Ry. App. R. L. v. Mo. Pac. Co., 195 C. sec. Bennett Pac. 842, Dickinson, 1005, (Kans.) Pac. L. N. 196 W. Railroad, Barton v. & (N. C.) 607; 380; Hall v. Norfolk-So. 91 E. (3 J. 2 Hutchinson Mathews C. on Carriers Ed., p. Dickinson) Carriers, sec. Michie on 819, ,p. (4) reconsignment sec. 865. East Illi- Joliet notify party nois & Son, the in the bill of *7 binding against plaintiff, was and not void v legal lading, effect of holder in and was bills party by notify a de- the meal to said plaintiff. in violation of contract with fendant, his (U. S.) M. K. & T. v. L. Ed. Ward, 61 McGinn 1213; v. Ore-Washington Mar- R. Nav.& Pere 84; quette Ry. Rep. v. 41 v. French, 195; Co. S. C. Bank App. 532; 158 Mo. Pioneer Trust Mo. Railroad, Co. v. Ry., Pac. 224 106; Perkett 141 W. S. W. v. N.
(Mich.)
(5)
terminal
612.
& J. Railroad
E.
removing
in
and
bills of
carrier under these
transporting the meal
from the destination
in
named
places,
on
bills
to other
different
notify party,
orders
who did
have
Son,
taking
and who never had the bills of
from
notify'party
entering
indemnity
an
a
bond
into
put
notify
party
new contract with said
which he shipment
in control of the
allowed to
remove
requiring
production
same,
of the bills
lading properly
a
endorsed, conversion of the
the initial
carrier is liable
this action. Secs.
Comp.
King
p.
8604-e,
U.
8604-ee,
S.
Stat. 1916,
9313;
Georgia
v. Barbarin,
249
Railroad
v. Blish
Co.
(6)
Milling Co.,'241H.
96 OP SUPREME COURT Kemper Hines. v. & Elevator Co. Mill otherwise since tbe evidence defendant, established sec. Union R. L. Naval Stores 1122,, conversion. 26 C. Cyc. 38 240U.'S. States, Co. v. United Richard- Knipper Ashby, 107 v. Blumenthall, son 132 '247; Mo. App. Lafayette Mo. Metcalf, 'Mo. Bank v. Storage App. Ency 90-; Co., Mo. Ev. Ward v. Pettigrew Lynch, 741; Bank v. Railroad, 204 W. Ency. App. moreover, PI. & Pr. 1079. And Mo. 519 21; useless have an idle and since would a demand S, ceremony. Richard- properly Larrabee, Milliken v. W. Ashby, (7) 248. The. court son v. by defendant -as to offered occurrences
excluded evidence transpiring after Marshall the conversion. Grain Co. attempt justify Ry., (8) Defendant’s 176 Mo. notify shipments particular to the delivery of these charge notify party party, that the had taken evidence shipments moved other of other them Joliet to variety was.properly places, reasons: excluded for a (a) obligation measured Because defendant was solely lading,' the his written or bills contracts, alleged provisions which could an be altered practice growing out other custom or transactions, and attempt parol, (b) showing resting in was no There contractual between to show that the relations shipments other and defendant as to same shipments question. as in the & Elev. (9) App. Nor v. Mo. Pac., evidence of *8 long the condition of the meal after the conversion there- places improperly it and to which been of, at had and transported, unlawfully admissible; its condition and (East Joliet) time value of conversion and being legal upon damages. assess 26 basis to Langford, sec. 1148, R. C. L. Rivinus V.
Mayes Cunningham, Coffey 204 Bank, S. v. W. v. Price, 587,; 46 Mo. Yigil, Farwell v. 30 Mo. v. Martinez String’er Mfg. L. R. A. v. B, 1915 Geiser App. 345; v. Feland, 189 Mo. 17 Carter Charles 462. Mountain, St. L. & Interest on the Iron Yol. TERM,
Kemper Mill & Elevator Co. v. Hines.
property
value
the converted
from
time
Lang-
properly
conversion
allowable.
was
Rivinus v.
Yalley
A.
959,
L. R.
ford,
252; Arkansas
Land
Cyc.
& Cattle Co.
IT.
Mann,
L.
79,
32 Ed.
Coffey
Bank,
46 iMo.143;
1.919;
R.
Sec.
4222,
Ashby,
Richardson v.
SMALL, C.—Suit conversion of two cars corn .for shipped over the L. & St. Francisco San connecting East Joliet, Illinois—one car carriers being shipped Republic, from the other Missouri, and lading Missouri. Aurora, The bills were issued plaintiff by Company, charge said Railroad while of the Director General dated, of Railroads, and were respectively, April They April 12, 1918, and shippers’ “Notify & Eby order F. bills, were Jonas sight Eby Son.” Plaintiff drew two on & Son drafts Pennsylvania, attaching at Lancaster, one of and, lading bills of each draft, forwarded same collec- to. through City, tion its bank Kansas with instructions to lading Eby payment upon deliver the bills of & Son being by Eby the drafts. The drafts & dishonored plain- lading Son with were the bills of returned to the possession tiff. The bills of ,were never Eby ownership In both & Son. meantime, the at re-consigned by cars had the terminal carrier request Philadelphia, Joliet at the one to Son, Pennyslvania, and one Lowell, Massachusetts. The required give company in- an terminal it Son demnifying bond, accordance with its custom in such rail- cases. No new bills of but the issued, simply billing changed com- road the terminal pany by inserting therein the cars. new destination Philadelphia Lowell arrival at the meal On . rejected spoiled unmerchantable found to by Eby & Son. July 3, tended
Plaintiff’s evidence to show consignments been so it had 1918, when ascertained payment re-shipped rejected, demanded Mo.—7 *9 OF COURT Elevator v. Hines. Mill & claiming terminal that defendant, from the meal or meal deliver the to at Joliet had carrier being Eby re-consign reguest Son, it & at the au having bills nor nor owners, re-consign receiving plaintiff thority or for so from the converted ing therefore that the was and the meal, initial defendant, terminal as carrier, said and plaintiff. Each to the for its value liable carrier, Commerce lading in the standard Interstate bill of “con provided that meal, and form, Commission signed car indicated below, and destined as said delivery carry agrees to its usual rier to on its to deliver road, otherwise, said if destination, destination.” Each on the route another carrier to said provision: following lading contained the bill of also prop original bill order ‘‘The of-the surrender erly required before shall of-the indorsed property. Inspection property the bill covered provided by permitted law, will not be unless original lad permission on the unless is indorsed writing by shipper.” ing given also Each bill “Consigned following: Kem contained order per Company, Mill & E. Ill. Destination, Elevator Joliet, Notify Eby & Ill. Son, F. at E. via Joliet, Route Jonas C.P. St. L. E. J. E.” and via pleaded plain
The defense answer was billing at the corn tiff, meal, time said had large Eby F. contract with Jonas & for the Son sale quantity of meal Ill., and billed the same East Joliet, Eby notify order, own with directions to Jonas F. its Eby defendant Jonas F. & Son Son; notified accept Son same directed and said refused to at East Ill. That thereafter authorized Joliet, directed & to have one car Son forwarded Philadelphia, Pennsylvania, Mas another to Lowell, sachusetts, ar forwarded; and same so inspected rejected it was rival, unmerchantable, plaintiff notified thereof. denies “And defendant says true that he same.” converted Yol. TERM,
Kemper Mill & Co. v. Hines. Elevator reply the new matter in traversed answer. plaintiff’s support At the trial evidence to tended allegations petition, au- that it and had never anyone Eby thorized or directed & Son or to said have Philadelphia orig- cars forwarded to or their or Lowell, changed. inal destination part, testimony tending
Defendant, offered to prove, lading First: That issued, after the of were bills plaintiff orally Eby & to authorized the said Son re-consign shipments, instruct the carrier to or divert respectively, from Joliet, Illinois, to Massachu- Lowell, Philadelphia, Pennsylvania, setts, Sec- was done. question part That ond : the two order cars anof by Eby of 10,000 of corn meal ordered from sacks & Son plaintiff, originally required shipped Illi- to be to Joliet, agreement subsequently changed, by of but nois, parties oral any shipment before authorize so as to made, Eby re-consign & Son to order the carrier to or divert all shipments, consisting of cars, said of fifteen- twelve or points, from disposed to eastern be Joliet, various to there by plaintiff, agents or for & Son, as plaintiff, the account of other cars all of the agreement changed were so diverted under such disposed by plaintiff plaintiff or for prior plaintiff July Son, to 3, 1918, when first notified defendant that it to had not authorized cars suit Philadelphia be diverted or forwarded to or Lowell, plaintiff would for a hold defendant liable as conversion of the same. Third: That it for all the custom
shipments made market Joliet, which not a from for corn railroad méal, convenient center points to reach other or which markets, bills shippers’ lading notifying parties, certain order, shipments points be car- other diverted request notify parties, at the rier rendering sur- having possession or bills imtheir any having special authority shippers au- thorizing re-consignment or diversion. OP MISSOURI, COURT Co. Hines. Elevator testimony plaintiff, objection all of above
On offered defendant was excluded the court. provided that: “The amount The bills of damage any shall is liable loss carrier property computed on the the value of the basis of' shipment place at time under this bill of charges paid.” parties including freight tried if Both damages'was theory the measure the case on the conver- the time and value of the assigns testi- certain error as defendant sion, and mony meal, admitted for as to. the value *11 the not notice the we take of but we view need in pláce determining time such value. complains refusal
Defendant also of the court’s plaintiff’s in- demurrer certain evidence, and of giving in- certain structions asked it, plaintiff, structions for the but the of this court decision excluding evi- court on the action of the lower in the points dence aforesaid offered and on other defendant, propriety in- the of such will herein, also determine specifically not structions' and need set out further to. referred for the for $9,091,
The verdict-was more than was claimed in clause the $433.50 ad damf^um petition. in the overruling new court defendant’s motion appealed duly it court.
trial, to this shipments ship question being, I. The in interstate not ments, is initial denied defendant, it. for the terminal was liable acts carrier, Liability carriej- at East Uni Joliet under the Federal Lading v. Blish form Bills -of [Railroad “Act. carrier!a Company, Milling 241 U. S. terminal the act of think, too, that II. We re-consigning request of Son, at carrier, points changing to eastern from Joliet corn any although way it not did issue new bills bills, OCTOBER TERM, Yol. Hines. Mill & Elevator Co. v. delivery was a of the meal to Conversion. (Pere Marquette Son Railroad Co. v. French 195); Reporter, Supreme and unless such
& 41Co., Court is plaintiff, defendant was authorized sub liable as for of said'meal a conversion delivery was if sequent But therefor. demand here plaintiff, not liable the defendant is authorized Milling Mar 241 U. in. Blish [Railroad Marquette shall Pere & Co. Supreme Re Court Railroad Co. French & porter, 195.] person
In the cited the to whom the last case lading illegally procured the had delivered it, it he carrier, surrender had did upon possession, duly his and was Indorsed, ground possession that he it in his that the court had justified delivering But to him. the carrier in disposing law court announced case the page follows, 198: imposes upon nothing
“There in the act which duty shipper specific take up carrier a obliged lading. bill of Under 8 the carrier is Section upon, delivery except production surrender to make lading; prohibited but it is not the bills so upon doing. insisting production and If instead of *12 up- bill it surrender of the in reliance chooses deliver the on duty assurance that the has so far as it, the deliveree shipper only is it concerned, to the is the risk runs says person may he has the bill it. the who have proves case, the is liable the carrier If shipper indemnify course, must, conversion liability loss results. Such not from arises, which obligation as- statute, which the carrier from lading. . . sumes bill of language “Although cases there a conflict of is delivery shipper a sues a carrier for goods requiring without a surrender of the bill principle appears be no conflict or decision. there 102 SUPREME COURT OF . v. Hines. Elevator MUI & Co. presentation require
Where the failure to sur shipper losing render his of the bill is the of the cause goods, delivery requiring a con without constitutes a 267, [Babbitt version. 285 Ill. v. Grand Trunk Railroad, Michigan Mich. 120 N. E. 803; Turnbull Central, 150 N. Louis Railroad 213, 132;W. v. Minn. & Judson St. 131 Minn. Bank Co., W. National 5, 154 N. First Oregon-Washington Company, 25 Idaho, Railroad Milling 136 Pac. 58, v. Blish Railroad U. Sup. 190, livery 948.] Ct. 60 Law Ed. But 541, where de person a made to the bill who has or who has of the it, holder cause shipper’s require loss is the failure to surrender improper acquisition the bill, but the de of it improper subsequent or liveree mere his conduct, presentation require technical failure to surrender delivery of the bill will not make the [Chi conversion. cago Packing Company, Co. v. F. & W. Railroad Mfg. Ga. 140, 29 E.S. 40 L. R. A. 698, 367; Famous Co. Company, v. & N. C. Railroad 147 N. W. Iowa, 361, Company, Nelson Grain Co. Mich. v. Railroad 140 N. 80, W. St. Louis, Southwestern Railroad v. ” (Italics ours.) Gilbreath, 144 S. W. Marquette
III. As we have seen, above case of Pere Rep. lroad v. French 195, S. C. Rai may holds that the company railroad deliver shipper’s to the holder of order bill of'lad Surrender ing (even though holder), not the with lawful Way Bill. presentation out the bill. or surrender of the plaintiff consignor In before remained us, the case holder of the bills at the time the lawful by Eby re-consignment could Son. The therefore been delivered to that time, have lading.. the surrender of bills of Congress provisions afore- IY. The act Compact (U. 8604-e) an- sec. Ed., S. R. S. *13 Vol. TERM, Kemper Hill & Elevator Co. v. Hines. delivery “(a) A the carrier make thorize person lawfully
Delivery possession entitled to the of the by Agent. possession “(c) person goods” of an in A by goods goods, the terms of order bill order.” are deliverable to his consignor hardly
It will be contended what by agent. authorized not do could do he could his himself per Consequently, per Qui where alium se. facit facit goods by the order are deliverable consignor consignor could authorize in this case, as agent sur- him, receive his rendering long bill, is holder he bill, as delivery delivery legal between and the would be a intervening. party rights him third and the carrier, supra.] Marquette [Pere Railroad Co. v. French & Co., case, consignor's V. But in such would the author ity agent to his to receive the be required writing, to be in as in effect contended re spondent's learned counsel and ruled the court be nothing low~ We think not. We know of in Parol Congress the Act of or other statutes so re Authority. c~uiring. The fact that the bill of itself writing require required in does is property agent- receiving thereunder to be required writing. to sell land is a contract Where signed by writing be made the statute to agent’s duly agents, parties au authorized their expressly writing, re thority so not be unless need Myers, c. quired v. 240 Mo. l. [Beheret the statute. Riley Minor, l. c. v. v. 185 Mo. Fecht, 84; Johnson Tracy McGruder, v. Johnson App. Berridge, 180 Mo. v. Furthermore, completely
VI. after a contract party executed one the other cannot invoke the Stat Cherry, [Winters ute of Frauds. 78 Mo. Statute Tuggles Cordell, Self v. 45 Mo. of Frauds. Callison, McGinnis, 143 Mo. MoGinnis v. Maupin 274 Mo. 171 Mo. Blair v. *14 COURT OF MISSOURI,
Kemper
Elevatojc
Mill &
Hines.-
Co. v.
Mis-
Jenkins,
Read,
Bank v.
Mining Co.,
souri & Illinois Coal Co. v. Willis Coal &
So that surren- if the terminal at Joliet possession Eby dered & corn Son the authority by given plaintiff, verbal having them the the completely Frauds executed, Statute by plaintiff, could not be invoked even if there provision agent authority requiring of law writing. delivery, to receive such We therefore be in parol authority Eby that Son evidence, hold plaintiff’s ag,ent from the ter- to order the shipments minal carrier at Joliet forward said Philadelphia, by Lowell and ex- offered defendant by cluded court, have been admitted'and should refusing court erred in it. respondent’s strenuously VII. But learned counsel n
argues testimony that such was made inadmissible following provision reason of the of the Federal statute (Sec. 8604-g, Compiled U. S. Stats. 39 U. Stats. 540): Large, “Any era alteration, addition or Alteration authority sure a bill after its issue without issuing writing from the carrier or same, either in noted on the bill, void, shall be whatever be the nature purpose change, and the bill enforce shall be according original Clearly able to its tenor.” re this change wording fers some sub sequent writing appli erasure or thereon, has parol agreements consignor cation to between the parties agents to be notified, are made consignor shipper’s of order bill to receive goods production from the carrier without surrender of the bill. (a) It
VIII. is also .true the mere fact required Eby Son to be notified the bills way gives rights any in no themselves, them TERM, Vol. & Elevator v. Hines. authority to receive the or makes
Notifying agents consignor doing. th~m for so Purchaser. language themselves, Under of the bills authority & Son had no interest in or over the 294, p. 842; [4 whatever. R. C. L. sec. Bank v. Carriers, p. 560,
132 Mo. l. c. 1 Michie on secs. 865 & Son had is here, the claim But implication it- the bill *15 plaintiff by specially were that authorized but self, re-consign goods account for and on the to receive and parol plaintiff agents plaintiff the the of as the of the testimony under consideration. (Sec. provides TJ. Congress
(b) 8604-d, Act Said of Compact 1374): Comp. p. in- “The Ed. 1918, S. Stats. person to. name of a bill the order of sertion in an the shall limit the arrival of of the notified pur- negotiability constitute notice to bill or of the person any rights equities of such of thereof chaser only obviously applies goods.” But this statute in the purchaser of not. bill, the with contests shipper carrier and the while between contests possession of in and owner and the holder latter still is in this case. as bill, Lading (c) under said Bills of also true It shipments evidenced must be for interstate Act contracts by implies' necessarily which bill of writing. provisions of Hence, in must be contracts testimony. by parol lading cannot be varied such bills of Compact Complied 8604-a; Ed. sec. [U. Stats. S. Vittuci Co. Railroad, 217 W. Thee v. Wabash & Co. 238 Fed. Inman Railroad, Pacific Canadian Ocean Vanderbilt v. v. Seaboard Oregon Bark Delaware Iron S.
14 Wall. way testimony question parol in in here But lading, because, bill of the terms of adds to varies Congress, as Act terms being plaintiff of the the owner seen, we have OP COURT v. Hines. Mill & Elevator right lading, had a being possession bill of tibe in forward surrendering to receive bill, agents, duly whose goods, authority, authorized done, writing, in not be determined, need we have by parol. may be shown re- learned counsel IX. It is also insisted question were spondent the two cars inasmuch as April origin, April point 10th and from their moved 16, 1918, respectively, they were transactions Same prior, point time, shipment to the Transaction. paragraph ill second other cars referred testimony, rejected and therefore the our statement testimony to eastern other cars were forwarded that such controversy, points in plaintiff’s two same cars agents plaintiff’s consent, with Son as relating But, another transaction. inadmissible, as testimony, according said two cars to the offeréd part parcel 10,000 sacks order of same plaintiff did other cars referred to, meal as said question complain until the conversion the cars July had after the other cars 3, 1918, orders from forwarded under & Son *16 disposed plaintiff points or itself to eastern agent. by Eby the think, therefore, We Son its prior testimony handling other as to the of such cars, complaint was plaintiff’s herein, to conversion the part competent should have been admitted question. the transaction as the two cars same testimony the X. But think embraced within we namely, rejected paragraph evidence, “Third” shipments Joliet, that it was the custom all made to Illinois, shipper's order bills of Custom. "notify" parties that mentioned in the bills authority to authorize the carrier divert had as such points having producing other without having special and without the bills properly rejected. shippers, was from the of such Proof Vol. OCTOBEB TEBM, Hines.,
Kemper Mill & Elevator Co. v. competent. custom Bank sec. 27; L. [4 25, R. C. Transp. l. c. Railroad, Mo. Lakes Co. v. 500; Great Company, Georgia 238 Fed. l. Hirsch v. c. Iron p. Coal 560, l. c. 1 Michie on Carriers, secs. 866.] defendant’s Besides, witness, manager handling traffic of the terminal railroad .shipments, instruc testified were “handled on deny consignee”-thus shipper tions from either the ing they party” “notify handled special authority goods. from the owner of the “notify” testimony custom as to the parties change the destination of the there- properly fore excluded. proper permit
XI. jury It allow jury per in the discretion of the six cent per property terest annum on the value Valley [Arkansas time of the conversion. Land Interest. Mann, & Cattle Co. v. 130 U. S. Rivinus v. Langford, See. R. S. State ex rel. Hope, Railway, App. 121 Mo. Goodman v. 71 Mo. Railway, App. 614.] Bank v. 192 Mo. admission, Appellant complains XII. also toas testimony concerning meal of certain value of alleged other at the time of certain conversion at places pass siich than we need not Joliet, Value of objection Goods. the reason the bills of provide damages themselves measure of shipment value of is the time and provision the bill is and not of destination. This Ry. parties. binding [Georgia valid and on the F. & A. Milling Rail Co. v. Blish Brockman U. S. App. way, 195 Mo. l. c. there
XIII. what From it is clear has jury was a case for the defendant’s de- and, therefore, *17 Other, properly murrer to the evidence was refused.. complained by including appellant, errors are errors giving refusing the ver- instructions, COURT OF Meyer.
State v. prayed greater for in the amount than diet alleged petition. But not consider further we need disposed as if not of them have been errors, all, .of most, already upon we have announced, conclusions likely any á plaint it is not there will cause for com- retrial thereof. on account judgment is and the reversed cause remanded expressed. Rag- according to the
retrial views herein sitting. G., concurs; Brown, G., land, opinion by foregoing PER CURIAM:—The Small,'* adopted opinion the court. All is C.., judges concur. Appellant. MEYER,
THE v. ALVIN STATE Two, Division March Identity Questions Appeal: Deter- Former 1. CRIMINAL LAW: prosecution, Where, appeal criminal mined. a in a on second comparison appears on the the record of the record with from a appeal question appeal, former on the determined former that the entering into deceived or misled defendant had been was whether appeal guilty, question plea is whether the second a while involuntary, voluntary made defendant was confession identity questions render the involved is no such there ap- appeal the second the law of the case on on the first decision peal. made, Admissibility. Confession: confession -: Where charge, upon an officer one under a criminal arrest law, any improper him and without exerted influences advantages promises worldly made harm threats of him, is admissible in evidence. such confession