Opinion
March 3, 1933.
CARRIERS: Interstate Commerce: Delivery. Where a carrier delivered a shipment of cattle in the unloading pens at destination where they could conveniently be procured by consignee who was promptly notified, the carrier discharged every duty it owed the shipper, following. Burton et al. v. Wabash Railway Company, 58 S.W.2d 443, 332 Mo. 268.
Appeal from Chariton Circuit Court. — Hon. Paul Van Osdol, Judge.
REVERSED.
Homer Hall and Collet Son for appellant.
(1) The circular of the Interstate Commerce Commission containing the rules of the Commission with respect to the unloading of live stock in suitable pens and defining the term "suitable pens" was competent evidence, for it was made pursuant to the provisions of the Act to Regulate Commerce and fixed the place where the carrier's liability ended, and the court erred in excluding the same. Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 438; Railroad Co. v. Pitcairn Coal Co., 215 U.S. 481; Railway Co. v. Reid, 222 U.S. 438. (2) The plaintiffs based their right to recover on the ground that defendant carelessly and negligently delayed the cattle in transportation and, having alleged negligence, they are required to prove it. There is no evidence in the case proving, or tending to prove, that the defendant was negligent in the transportation of the cattle, and the court erred in refusing to declare and find that the plaintiffs were not entitled to recover. Robinson v. Bush, 200 S.W. 757; McMickle v. Railway Co., 209 S.W. 614; Baker v. Schaff, 211 S.W. 103; Burgher v. Railway Co., 217 S.W. 854; Harrison v. Railroad Co., 209 Mo. App. 530; Neely v. Hines, 237 S.W. 909; Rudy v. Railroad, 278 S.W. 814; Mourer v. Railway Co., 280 S.W. 1050. (3) The declaration of the court in plaintiffs' Instruction 1, that the cattle were not delivered until they were in the actual possession and control of the consignee, or were placed in pens assigned to the consignee, is erroneous, for the reason that the defendant made delivery of the cattle and fully performed its duty as a carrier, when the cattle were unloaded and placed in the unloading pens or chutes at National Stock Yards, where the consignee could have obtained possession of them. Sec. 15, Interstate Commerce Act: Sec. 15, par. 1, Title 49, U.S. Code; Circular No. 1-S, Interstate Commerce Commission, pp. 114, 115; Packers and Stockyards Act, approved August 15, 1921; Secs. 205, 206, Title 7, U.S. Code; General Rules and Regulations of United States Department of Agriculture of November 30, 1921, under the Packers and Stockyards Act 1921. This instruction was also erroneous, for it declared, as a matter of law, that the delay complained of was negligence instead of submitting that as an issue of fact to be established by the evidence. Railroad Co. v. Thompson Mfg. Co., 270 U.S. 416, 70 L.Ed. 659.
Roy McKittrick for respondents.
The defendant having contracted to deliver the cattle to Liner Livestock Commission Company, its duty was to place the cattle in the actual physical possession and control of the consignee or in a place where the consignee had access to them with no one to interfere with, or prevent such control. Carr v. Railroad Co., 284 S.W. 184. It is the duty of a carrier to deliver livestock to the consignee and since delivery cannot be made safely except through inclosed yards, its duty to receive, transport and deliver livestock is not discharged unless the carrier makes such provisions as will enable it to actually deliver livestock to the consignee. Covington Stockyard Co. v. Keith, 139 U.S. 128. The agreement was intended to mean and does mean that the failure to have respondents' cattle within the pens of the consignee within a reasonable time was due to the negligent handling of the cattle in the stockyards, and the court did not err in refusing to declare that respondents were not entitled to recover.
This case is a companion case with that of Burton et al. v. Wabash Railway Company, 58 S.W.2d 443. Both cases involve the same question of law arising out of similar states of facts. Like unto the Burton case, this appeal came to this court by transfer upon the certificate of the Kansas City Court of Appeals that its opinion herein (21 S.W.2d 1110), is in conflict with that of the Springfield Court of Appeals in the case of Carr v. St. Louis-San Francisco Railway Company, 284 S.W. 184.
This is an action for damages for negligent delay in the transportation of respondents' (plaintiffs') cattle by appellant (defendant) from Salisbury, Missouri, to the Liner Live Stock Commission Company, consignee, at the National Stock Yards in East St. Louis, Illinois. At the trial, which was before the Circuit Court of Chariton County, without a jury, the parties stipulated that the cattle were delivered at the National Stock Yards and unloaded into the unloading pens within reasonable time for sale on the day of arrival and that whatever damage resulted to respondents was caused by delay in the handling of the cattle in the stock yards after they were unloaded at the unloading pens. There was judgment for respondents in the sum of $334.25, and appellant appealed to the Kansas City Court of Appeals. The latter court reversed the judgment and remanded the cause for the reasons stated by it in its opinion in Burton v. Wabash Railway Company, 22 S.W.2d 201, but transferred the appeal to this court on account of the conflict of opinions heretofore mentioned.
For the reasons stated by this court in its opinion in Burton v. Wabash Railway Company, 332 Mo. 268, 58 S.W.2d 443, and simultaneously delivered with that in the instant case, the judgment herein is reversed. Cooley and Westhues, CC., concur.
The foregoing opinion by FITZSIMMONS, C., is adopted as the opinion of the court. All of the judges concur.