84 Mo. App. 589 | Mo. Ct. App. | 1900
The facts which the evidence tends to prove may be stated in this way:
The Missouri, Kansas & Texas Railway Company operates a line of railway from the city of Houston, in the state of Texas, to the city of Sedalia, in this state. It has no line between the lást named city and the city of Lexington, also a city in this state. The defendant operates a railroad from Sedalia to Lexington. The plaintiff entered into a contract of affreightment with the Missouri, Kansas & Texas Railway to carry a mare and three colts from the said city of Houston to the city of Lexington, paying the freight charges for the entire way. The latter carried the plaintiff’s animals to Sedalia, where it delivered the same to the defendant with a transfer sheet which stated the point from where the plaintiff’s animals had been shipped, the point of destination and that the freight had been paid to Sedalia. The defendant thereupon carried the plaintiff’s animals to Lexington and on the arrival thereof notified plaintiff of the fact and that the freight charges due thereon was twelve dollars and twenty-five cents, the same being the defendant’s local rate between said last named points. The plaintiff refused to pay the charges so demanded, claiming that he had paid the Missouri, Kansas & Texas Railway the .freight charges from Houston to
On the day of the arrival of the plaintiff’s animals, and while the defendant was engaged in endeavoring to ascertain whether the plaintiff had paid to the Missouri, Kansas & Texas Railway the freight charges for the entire way, the plaintiff, after demand for delivery and refusal, brought this action for conversion. It is proper to further state in this connection that the defendant’s agent offered to deliver the plaintiff’s animals if he would agree to pay its charges in the event it should turn out, on investigation, that the same had not been paid to the Missouri, Kansas & Texas Railway, which offer was by plaintiff rejected. It does not anywhere appear from the evidence presented by the bill of exceptions that the defendant, at the time of the receipt of the plaintiff’s animals, was advised that the Missouri, Kansas & Texas Railway Company had entered into a contract with the plaintiff to carry the same to Lexington, or that the plaintiff had paid the freight charges from the initial point to that of the destination. The plaintiff did not produce the contract or bill of lading received of the Missouri, Kansas & Texas Railway, the same having been lost by him. It appears that when the car which carried the plaintiff’s animals reached Sedalia the defendant’s agent there changed the way bill by striking therefrom Lexington as the point of final destination and inserting in lieu thereof Sedalia, but of this the defendant does not appear to have had any knowledge, There was a trial and judgment for defendant to reverse which plaintiff prosecuted his appeal.
The first, in the series of errors which have been assigned by plaintiff for a reversal of the judgment, relates to the action of the trial court in the giving of the defendant’s instructions numbered one, three and eight and in refusing those num
It seems to us that under the pleadings and evidence these instructions very folly and fairly submitted the issues in plaintiff’s behalf. It is conceded that a common carrier may contract to carry beyond the termination of its own line. It is quite well settled that if several common carriers, each having its own line, associate and form what to the shipper is a continuous line, and contract to carry goods through for an agreed price, which the shipper pays in one sum and which the carriers divide among themselves, then they are jointly and severally liable to the shipper, with whom they have contracted, for a loss taking place on any part of the whole line. And it is, too, well settled that incorporated railway carriers have authority to contract for the carriage of persons and property beyond their own lines, and beyond the limits of their respective states. Wyman v. Railway, 4 Mo. App. 35, and cases there cited. And a railway carrier entering into such contract incurs the liability that would attach to it had it contracted solely to carry over its own line. Cherry v. Railway, 61 Mo. App. 303, and authorities there cited; Baker v. Railway, 34 Mo. App. 112; Coats v. Express Co., 45 Mo. 240.
Halliday v. Railway, 74 Mo. 159, cited by plaintiff, was where the connecting carrier received the goods from the contracting carrier to be carried in pursuance of the contract of the shipper with the latter, and it was held that the law will imply from such circumstance sufficient privity between the shipper and the connecting carrier to enable the shipper to maintain an action on the contract against such carrier. But in this case there is no evidence whatever tending to prove that there existed between the defendant and the Missouri, Kansas & Texas Railway'Company any traffic arrange
There is nothing disclosed, by the evidence showing that the Missouri, Kansas & Texas Railway Company was, in respect to the receipt by it of the entire carriage, the agent of the defendant. If the defendant had been authorized by the contract entered into by plaintiff with the Missouri, Kansas & Texas Railway Company and the prepayment of the entire carriage by the plaintiff, then the plaintiff would unquestionably have been entitled to possession on demand. Accordingly we conclude that the refusal to deliver unless payment of the charges was first made would not constitute a conversion. The defendant had a lien, or, which is the same thing, the right to 'withhold the possession until such
This case is to be distinguished from those to which our attention has been called, where there was a wrongful taking or assumption of the right to sell or dispose of the property, or where the bailee wrongfully sells or disposes of the bailment, or where there is a denial of the owner’s title, and a refusal to deliver, accompanied with an assertion of the adverse title, and the like. When the plaintiff made his demand the defendant refused, stating the grounds therefor, viz.: that it had an undischarged lien on the property, or a right to withhold possession until such lien was discharged. Undoubtedly, in a case of this kind, a demand and a refusal prima facie would establish a conversion, but this prima facie case may be rebutted or explained by proof that the carrier claimed to have and did have, at the time of the refusal, a lien on the property for carriage, and that the possession was withheld on that ground. The cases cited by defendant fully illustrate this statement of the law.
A conversion, in a legal sense, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in withholding the possession from plaintiff under a claim of title, inconsistent with his own. Sparks v. Purdy, 11 Mo. 219; Nanson v. Jacob, 93 Mo. 331; Masterson v. Railway, 5 Mo. App. 64, and
It is not disputed that defendant lawfully came into possession of the plaintiff’s animals, and when it refused to deliver such possession on demand, if it did not know that its charge for carriage had been prepaid to the preceding carrier for it, no reason is seen why it was not authorized to detain such animals for such reasonable time as would enable it to ascertain whether or not it was true, as the plaintiff asserted, that he had prepaid such charges, and that if it did so this was not a conversion within the principle of the rules to which we have adverted. The contracting carrier, on delivering the plaintiff’s animals to the defendant should have advised the latter of its contract with the plaintiff and that he had prepaid the entire carriage; but as it did not take this course, it was the duty of the plaintiff, when the defendant refused to deliver possession without payment of its charges for carriage, to have produced the contract and to have thereby showed that the charges had been paid; and if such contract were lost or could not be produced by him for any reason, then the defendant had a right to resort to other sources of information and in the meantime to withhold possession.
If when the plaintiff demanded possession, the defendant’s agent, in good faith, proposed to him that he would deliver possession of the animals if he -would agree to pay the defendant’s charges—which plaintiff claimed had been paid—if it should later on turn out that the same had not been paid, we think that this was a qualification of the defendant’s refusal to deliver which the jury were authorized to take into consideration in determining the issue. The plaintiff by his said refused instructions numbered ten and twelve sought a submission of the case to the jury upon the
The third instruction given for the plaintiff, which told the jury that if his demand for the possession Avas refused that then the burden of proof rested on defendant to shoAV that it had a valid and subsisting lien upon plaintiff’s animals, and a right to hold the same until the lien was discharged, and if it had not so shown, but at the time of the commencement of the suit held possession, then the finding should bo for plaintiff, was extremely favorable to the plaintiff. Accordingly, we are unable to find any fault with the action of the court Avith respect to the giving, refusing or modifying of the instructions referred to at the outset.
The plaintiff further contends that its first and third instructions are in conflict with these given for defendant— two, three, four and six. The plaintiff’s said first declared that if he made a contract with the Missouri, Kansas & Texas Railway Company to cany his animals from Houston
It is further objected by plaintiff that the defendant’s second and fourth instructions submitted a question of law to the jury. These instructions submitted to the jury the question whether or not the Missouri, Kansas & Texas Railway Company had authority to bind defendant by its contract with plaintiff and to receive for it its freight charges. Whether the Missouri, Kansas & Texas Railway Company was the agent of the defendant in contracting for the carriage over the latter’s line of railway was a question of fact, which it was proper to leave to the jury to determine. Middleton v. Railway, 62 Mo. 579; Barrett v. Railway, 9 Mo. App. 226; Watson v. Tunnel Line, 13 Mo. App. 263.
The plaintiff further objects that the court erred in refusing its eleventh instruction which told the jury that if it found from the evidence that on the fifth of December, 1895, the Missouri, Kansas & Texas Railway Company paid defendant the freight claimed by the latter and it was accepted with a full knowledge at the time that the former had contracted to deliver the freight at Lexington and had accepted payment therefor, then such latter ratified the said contract and such subsequent ratification is as if such latter had given such former full authority to make said contract and could not be heard to deny the authority of the former to do so. The alleged conversion took place on the fourth of December. This suit was begun on the next day—December 5. The effect of the instruction would be to preclude the defendant from showing in its defense that at the time it refused to deliver the plaintiff’s animals unless he would pay its charges for carriage, it acted in good faith and was unaware of the existence of said contract or the payment of its said charges by plaintiff to the Missouri, Kansas & Texas Railway Company. If it had been alleged, as it was not, that the conver
The further claim is made by plaintiff that the defendant’s instructions were erroneous in leaving it to the jury to determine whether it acted in good faith in demanding the carriage of plaintiff. It is sufficient answer to this to say that the plaintiff’s second instruction contains a like vice, if it be such—which we do not think is the case.
The plaintiff has filed what we suppose is intended as a supplement to his original brief, in which it is suggested that the defendant has withheld certain “small articles” which were shipped along .with his animals and for the carriage of which no charge was made, and for that reason the judgment should be reversed. No issue in respect to these articles seems to have been made at the trial. There was no evidence whatver that the plaintiff, apart from his animals, demanded these “small articles,” or that the defendant withheld them for any purpose. They were not referred to in any contract or expense bill. They seem to have been regarded in the nature of trappings or caparisons. They went with the plaintiff’s animals like the halter and bridles securing such animals, and the right to withhold the possession of the animals extended to the small articles referred to.
We are unable to discover that the court committed any error at the trial that was prejudicial to the plaintiff on the merits, and accordingly the judgment must be affirmed.