Morrison Tent & Awning Co. v. Illinois Central Railroad, 190 Mo. App. 67

Morrison Tent & Awning Co. v. Illinois Central Railroad

190 Mo. App. 67 | Mo. Ct. App. | 1915

REYNOLDS, P. J. —

This action, commenced before a justice of the peace, was for the recovery of the value of a consignment of goods which respondent, a common carrier, undertook to transport from the city of St. Louis to Iberville, Louisiana, there to be delivered to the consignee named in the bill of lading. On appeal from a justice of the peace to the circuit court, the cause was tried upon an agreed statement of facts to the court, a jury having been waived.

*70The agreed statement of facts, so far as here material, sets ont that plaintiff, on October 26, 1906, delivered to defendant, at the city of St. Lonis, certain merchandise consisting of tents, poles and tent poles, of the value of $97.17, upon which plaintiff had prepaid the freight, for carriage of the goods to Iberville, Louisiana, defendant issuing a bill of lading therefor. The consignment arrived at Iberville at 8:20 o’clock on the forenoon of November 3,1906, on a freight train which reached that station fifty minutes behind its schedule time. The goods were placed by defendant in a warehouse at the station and the door locked. Iberville was what is commonly known as a flag station, where defendant had no agent at the time of the delivery of the goods and where it was the custom to stop its trains only on signal. The warehouse in which the goods were placed had two doors with locks and keys, one door opening on the platform on the side of the warehouse next to the railroad track, the other door at the. back of the warehouse, accessible to wagons. The key of the door next to -the station platform was carried ¡by the conductor in charge of the train which brought the goods to Iberville. For the convenience of parties residing near Iberville, the key to the back door of the warehouse was kept at' a residence close by, where a party, expecting a shipment could get it and see if there was anything in the warehouse for him, that key not being in possession of defendant nor under its control, and that being the usual course of business at Iberville. The conductor of the train upon which the goods were carried to Iberville placed the goods in the warehouse and locked the front door. These goods were never received by the consignee and neither plaintiff nor defendant in this action had any knowledge of the disposition thereof. Whether plaintiff’s representative, or the consignee, or anyone representing them had been at the station when the train was due, if on schedule time, or how soon thereafter, or when they *71ever looked for them, or demanded the goods,, does not appear.

The material clause of the bill of lading is as follows:

“When the goods or packages are consigned to a station where the carrier has no agent, the shipper authorizes and directs that the carrier shall upon the arrival of the train, by day or by night, and regardless of the weather, deposit the goods or packages upon the platform, whether there be any one there to receive them or not, and the shipper agrees that the carrier’s liability shall end upon such deposit, and that such deposit shall be considered a delivery to the consignee. ’ ’

At the conclusion of the hearing the court took the cause under advisement and finding for defendant rendered judgment in its favor and against plaintiff. Prom this plaintiff has duly prosecuted its appeal to our court.

It is argued by counsel for appellant that as the agreed statement shows that the goods arrived at Iberville station behind time, it became the duty of defendant to give notice to the consignee of the arrival of the goods and its failure to do so makes defendant liable to plaintiff in the case. The principal authority relied on for this proposition is Frank v. Grand Tower & Carbondale Ry. Co., 57 Mo. App. 181. A consideration of the facts, in that case in connection with the facts in the case at bar, does not satisfy us that that decision is controlling or in point here. A delay of fifty minutes in the arrival of a freight train at its destination can hardly be charged or considered such a delay as to bring the case within the rule announced in the Prank case, nor, for that matter, within the rule announced in Pindell v. St. Louis & H. Ry. Co., 34 Mo. App. 675, also relied on by counsel for appellant.

The stipulation in the bill of lading in the case at bar very distinctly provides that where the packages *72are consigned to a station where the carrier has no agent, as here, the shipper authorizes and directs the carrier, upon arrival of the train, by day or night, and regardless of the weather, to deposit the goods or packages upon the platform whether there be anyone there to receive them or not, “and the shipper agrees that the carrier’s liability shall end upon such deposit, and that such deposit shall be considered a delivery to the consignee.” Under this stipulation no notice was required. Nor is there any guarantee that the freight train will move by a schedule, or be on time. The parties had themselves a contract dispensing with notice.

But it is urged that the fact that instead of leaving the goods on the platform they were placed in the warehouse, constituted a conversion by the carrier; that the bailee, the carrier, by so handling it, had diverted the property to some other use or purpose, and that although the property may not be thereby injured, the bailee is concluded as by a conversion. We cannot accede to this under the facts in this case. The act of placing the goods in the warehouse was entirely for the benefit of the consignee, in no manner put them out of his reach, and it appears by the testimony in the case that that was the usual course of business at that station, of which the shipper and consignee are presumed to have notice. The goods were placed in the warehouse, which was. part of the platform, and instead of being left exposed to the depredations of the weather or of any wayfarer, were locked up and the key left in a neighboring house, as was the custom, for the convenience of consignees. There is no conversion here or anything tantamount to that.

Nor does it appear that plaintiff was in any way injured and placed at a disadvantage by the fact that the train was fifty minutes off its schedule time. It does not appear that it or the consignee, or anyone for them, were present at the station at the time the *73train was due, if on schedule time, so that we fail to see how that fact affected plaintiff to its injury. It was the duty of plaintiff, under the stipulations in the bill of lading, to look out for the arrival of the goods. No such precaution appears to have been taken.

We find no reversible error in the action of the trial court and its judgment is affirmed.

Nortoni and Allen, JJ., concur.