159 Mo. App. 685 | Mo. Ct. App. | 1911
This is a suit in replevin for a lot. of household goods. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff shipped his household goods and a cow in one car, under rating as an “emigrant outfit,” from Patton, Illinois, over the Big Four Railroad, the St. Louis & Southwestern Railroad, and defend
By plaintiff, it is shown that he paid the agent of the Big Four Railroad $33.60 for transportation of the car over the three railroads, the Big Four, via Cairo, Illinois, the St. Louis & Southwestern, via Lilburn, Missouri, and defendant, St. Louis & San Francisco to Steele, Missouri, but upon the car arriving at Cairo, Illinois, the St. Louis & Southwestern Railroad Company declined to receive it under this arrangement, as the freight charged was insufficient to compensate all of the carriers in accordance with the tariff rates approved by the Interstate Commerce Commission, and this was an interstate shipment. It seems a mistake had been made by the Big Four agent at Patton and that when the car reached Cairo, Illinois, all of the amount charged, save $6.80, had been consumed. Upon being informed at Cairo that the St. Louis & Southwestern Railroad would not receive the car, plaintiff surrendered his shipping contract to the agent of that road and rebilled the shipment from there over the St. Louis & Southwestern via Lilburn, Missouri, and 'defendant St. Louis & San Francisco line to Steele, Missouri, and on this reshipment received a credit of
It is conclusively shown in the case that the tariff rate on such shipment, fixed and approved by the Interstate Commerce Commission and duly filed and promulgated by it and posted by defendant, is $38 per car, such as this one, from Cairo, Illinois to Steele, Missouri. On this, plaintiff was, as before said, credited $6.80, and he declined to pay the remainder of $31.20 demanded on completion of the transportation. Because of his refusal to pay this, defendant retained the goods. Replevin lies only for goods wrongfully detained. Indeed, the wrongful detention is the gist of the action and if it appears defendant has so much as a special property in the goods supporting a right to immediate possession at the time, the action must fail. [Barnes v. Plessner, 137 Mo. App. 571, 119 S. W. 457.] Every common carrier has a lien on the goods carried for his compensation and no one can doubt the right of such carrier to' withhold the goods until tbe freight charges are paid and this lien is discharged. [Hutchinson on Carriers (3 Ed.), secs. 864, 867; Wells v. Thomas, 27 Mo. 17.] It is entirely clear that defendant rightfully detained the goods and that it was éntitled to possession thereof 'at the time the suit was instituted, for, according to the new billing made by plaintiff at Cairo, Illinois, over the St. Louis & Southwestern Railroad and defendant railroad, which constituted a new contract of shipment, a freight charge of $38 accrued between those points, on which he received a credit' of $6.80. On this contract, a balance of $31.20 was due defendant on delivery of the goods at Steele, Missouri, and until this amount was paid, defendant had a right to retain possession because, of its special property in virtue of the freight lien. But it is asserted for plaintiff that, as the Big Four agent at Patton, Illinois, accepted $33.60 in full and contracted to transport the car to Steele, Missouri,
In no view is plaintiff entitled to recover, and the. judgment should therefore be reversed and the cause remanded with directions to the trial court to proceed to reinstate defendant’s rights. It is so ordered.
