34 Mo. App. 675 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This is an action against the defendant as a common carrier, for the violation of a contract of affreightment. The petition is in the usual form, and alleges that defendant is a common carrier, and owned and operated a line of railway from Frankford, Pike county, Missouri, to the city of Hannibal, in said state. That on the twenty-fourth day of February, 1887, plaintiffs caused to be delivered to defendant at Frankford a carload of wheat, to be shipped and delivered to plaintiffs in said city of Hannibal, and that defendant received said wheat, but failed to deliver it to plaintiffs, whereby
On the trial plaintiff introduced testimony tending to prove delivery of the wheat to defendant for shipment over its said road, at the town of Frankford, on the twenty-fourth day of February, 1887, and that defendant agreed to deliver said wheat in the city of Hannibal to plaintiffs, and that defendant had failed to so deliver it. That defendant had placed said car of wheat on a side-track, in the city of Hannibal, which belonged to the Missouri Pacific Railroad, and that while standing on the side-track, the car, together with the wheat, was burned up and totally destroyed, on the afternoon of February 27, 1887.
Defendant’s evidence tended to prove that the wheat was received in the city of Hannibal on the morning of February 25. That there was no delay in the shipment, and that the wheat arrived at its destination on time. That defendant’s line terminated at limits of the city of Hannibal, and that defendant’s trains were brought into the city over the tracks of the Missouri Pacific Railroad, and that full car loads of freight were handled by the Missouri Pacific Railroad Company. That in the month of February, 1887, and for sometime previous thereto, the plaintiffs who were engaged in the milling business in Hannibal, and had been in the habit of shipping grain over defendant’s road, had instructed the defendant to place all car loads of grain to be delivered to plaintiffs on what was known as the ‘ ‘ Badger state” side-track, belonging to the Missouri Pacific system. This side-track extended through a lumber yard, and was some distance from plaintiffs’ mill, and the railroad depot or warehouse. That the car in question, on its arrival, was, by the switch foreman of the Missouri Pacific Railroad, placed on said side-track, and remained there until the afternoon of February 27,
Plaintiffs’ testimony in rebuttal was to the effect that they had no notice whatever of the arrival of the wheat. That they had telegraphed their agent in Frankford to ship a car load of wheat, but they were not advised of the fact that the wheat had been shipped. That they had no particular place for the delivery of wheat, that had been shipped over defendant’s road; that they received it at different places. That they had not given defendant instructions to deliver wheat shipped to them on the “Badger state” side-track, or on any other particular side-track. Plaintiffs also introduced some evidence of a negative character, tending to. prove that the car had not been received at Hannibal on the morning of February 25.
At the conclusion of the evidence, the court at the request of plaintiffs, instructed the jury as follows :
“The court instructs the jury that it is admitted by the pleadings in this case that the defendant, the St. Louis and Hannibal Railway Company, was on the twenty-fourth of February, 1887, a common carrier of goods, wares and merchandise. Now, if the jury find from the evidence that plaintiffs, on the twenty-fifth day of February, 1887, at Frankford, Missouri, delivered six hundred bushels of wheat to defendant to be by it carried on the line of its railway to Hannibal, Missouri, and if defendant accepted said wheat as such common carrier in its cars to be carried to Hannibal, Missouri, and delivered to plaintiffs, then the court instructs the jury that the law then imposed on the defendant the duty of safely carrying the said wheat to Hannibal,
On motion of defendant, the court gave the following among other instructions:
“The court instructs the jury, that if they believe from the evidence that I. N. Hostetter was authorized by the plaintiffs to purchase and caused to be shipped to them the wheat in question, and that said Hostetter acting as said agent did purchase said wheat and caused the same to be shipped to plaintiffs, on February 25, 1887, then the law is, that the knowledge of the agent of such shipment is the knowledge of his principal, and it becomes the duty of the plaintiffs to ascertain if the said car of wheat had arrived at its point of destination.”
“The court instructs the jury that if they believe from the evidence that I. N. Hostetter was the agent of the plaintiffs in the purchase and shipment of the car of wheat in question, and that the plaintiffs notified -said Hostetter on, or about, February 22, 1887, to ship them said wheat, and said Hostetter did, as such agent, on twenty-fifth day of February, 1887, ship the said car of wheat to the plaintiffs, then the plaintiffs were bound in law to take notice that the said wheat had been shipped to them, and the law did not require defendant to notify the plaintiffs of the delivery of said car on the side-track in question, unless the jury find from the evidence that said car of wheat did not arrive on time at the proper place for delivery.”
“ The court instructs the jury as a matter of law that the burden of proof as to their claim is upon the
The court on its own motion gave the following instructions:
“In lieu of instructions asked by defendant, the court of its own motion instructs the jury that if from the evidence they find that previous and up to the time of the shipment of the grain in question there existed an ordinary and usual course of dealing between the parties herein, in reference to the delivery of grain in bulk by defendant, as a common carrier, to plaintiffs as consignees, under which plaintiffs did their own unloading, and that under and by virtue of such course of dealing, if any, it was the usage between said parties to deliver grain in bulk in the car, by leaving such car on a sidetrack, if any, usually used by said parties for said purpose, and that the grain in controversy was so shipped to plaintiffs, and that the said grain- was on time so deposited in good order on said side-track in said car, and that then and there said grain safely remained reasonably long enough after its said arrival to enable plaintiffs to inspect said freight, then such and said deposit and remaining of said car of grain on said track became and was a delivery of said grain to plaintiffs, although no notice of said arrival was given, and if the jury so find said delivery the jury will find for the defendant.”
“The court of its own motion instructs the jury that if they find from the evidence that the grain in controversy was delivered to and received by defendant for shipment to plaintiffs, and that after transportation, but before being removed from car on said track, the
The case was submitted to the jury on the foregoing instructions which resulted in a verdict for defendant and the plaintiffs bring the case, to this court, by appeal.
The evidence in the case leaves no doubt of the delivery of the wheat in controversy to defendant by plaintiffs’ agent, and an undertaking on part of defendant to transport the grain to Hannibal and there deliver it to plaintiffs. The burden then rested on defendant to show a delivery to plaintiffs in accordance with its undertaking. Under defendant’s answer, it could not show by way of defense, or for the purpose of relieving itself of the liability of a common carrier, that plaintiffs were not present to receive the wheat at the time of its arrival, and that after a reasonable time, defendant had placed the car in a reasonably safe place in charge of its servants, and that by reason of these facts defendant held said wheat in the capacity of a warehouseman. If such a defense had been relied on, it should have been specially pleaded. It follows that the defense in this case must be confined to the question, of “ delivery, or no delivery.”.
It has been held in this state that if goods shipped on railroads arrive at their destination on time, then the carrier is under no legal obligation to notify the consignee of their arrival. But the company may, after the expiration of a reasonable time, either unload the goods and place them in its warehouse, or if the goods are in bulk and full car-load lots (such as grain), which cannot readily be unloaded and stored, then the company may place the car in a reasonably safe place under the direct charge and care of its servants, and when this is done, the liability of the railroad company is changed from that of a common carrier, to that of a warehouseman. To that extent, and to that alone, have the courts
Instruction number 13 is wrong, but the error was cured by instruction number 2, given by the court of its own motion.
While a carrier may, without notice to the consignee, after the arrival of the goods, change his relation to the goods from that of a common carrier to a warehouseman, yet the duty remains with the carrier to actually deliver the goods to the consignee, and it is the duty of the carrier to make reasonable efforts \>o find das owner, and if the liability of a common carrier still
It follows that the judgment in this case must be reversed and the cause remanded.