Opinion
No. 7052.
February 5, 1953.
APPEAL FROM THE CIRCUIT COURT, SCOTT COUNTY, R. B. OLIVER, III, J.
Bailey Craig, Sikeston, for appellant.
Thomas J. Cole, St. Louis, M. Walker Cooper and Allen D. Churchill, Bloomfield, for respondent.
This is an action for damages to a carload of corn while in transit in interstate commerce. The cause was tried in the Circuit Court of Scott County, Missouri. At the close of plaintiff's case defendant's motion for a directed verdict was sustained. Plaintiff appealed.
Plaintiff's petition pleads that it delivered a carload of No. I while corn to defendant railroad on December 12, 1946, to be shipped to A. C. Wassard Company, Los Angeles, California, and received bill of lading showing destination of shipment and that the consignee was plaintiff; that the corn was in good condition when received by defendant, being No. I white corn as shown by bill of lading.
The petition states that a sight draft for $3,575 was drawn on A. C. Wassard Company, Los Angeles, and was sent to the Citizen's National Trust and Savings Bank, with bill of lading attached for collection, by the Bank of Sikeston.
It pleads that the shipment was interlined with the Southern Pacific Lines; that on January 14, 1947, a communication was received by plaintiff from the Southern Pacific Lines advising that the shipment was unclaimed and requesting disposition of the car; that the corn was immediately disposed of by plaintiff for $1409.02. Plaintiff pleads that the corn had deteriorated; that upon arrival at destination it was in good condition and had it been delivered in a reasonable time or had plaintiff been advised by the carrier of the refusal of the consignee to accept said car, the corn could have been disposed of for $3,575. Plaintiff pleads that the corn was negligently handled by the carrier in the following particular:
"1. They failed and neglected to transport said car of corn to destination, Los Angeles, California, within a reasonable time;
"2. Permitted an inspection of the car without the consent of consignor and without requiring consignee to produce a bill of lading:
"3. Failed to notify consignor of the refusal of consignee to accept said car of corn within a reasonable time; and
"4. Permitted the corn to deteriorate by failing to notify plaintiff that it was unclaimed or refused; and
"5. Failed to notify consignor that corn was on hand, undelivered."
And that by reason of such negligence plaintiff was damaged in the sum of $2,155.98; that it filed claim with defendant for that amount, which was by it refused.
Defendant's amended answer admits plaintiff shipped the corn as alleged; admits the shipment was interlined with the Southern Pacific Railroad Company and that the company notified plaintiff on January 14, 1947, that the shipment was unclaimed by the consignee; admits that plaintiff disposed of said car of corn. Admits that the corn was in good condition when it arrived in Los Angeles and when the consignee was notified of the arrival but denies that the corn was of grade No. I and states that it was grade No. 3; denies the corn was negligently handled and denies the damage as claimed by plaintiff but admits plaintiff did file a claim as alleged.
The amended answer pleads that the damage to the corn, if any, was the result of the negligence of plaintiff or its agents, A. C. Wassard Company and denies all other allegations not specifically admitted. The answer pleads that the inspection of the corn in California, December 30th, was made pursuant to the rules of the Los Angeles Grain Exchange and pursuant to an Act of Congress embodied in Section 76 of Title 7 U.S.C.A., and came within provisions of an original bill of lading; that the damage to the corn, if any, occurred after the corn was placed for delivery, and after the consignee had been notified and while said corn was being warehoused in the railroad car.
The evidence established that plaintiff is engaged in the business of buying and selling grain. December 12, 1946, it delivered to defendant, railroad, at its elevator in Sikeston, Missouri, one car of corn certified No. I white corn, after inspection and grading by G. R. Fisher, a licensed government inspector. The inspector's certificate was incomplete as to total damage, heat damage and foreign materials. The corn was consigned by bill of lading to the order of plaintiff, Los Angeles, California, notify A. C. Wassard Company, Los Angeles, California.
Freight in the amount of $488.20 was prepaid. The bill of lading was attached to a sight draft in the sum of $3,575, drawn on A. C. Wassard Company, Los Angeles, for California, and sent to Citizen's National Trust Savings Bank of Los Angeles, for collection; the draft was made payable to order of the Bank of Sikeston, Missouri.
Defendant's lines not extending to Los Angeles, the shipment was interlined with the Southern Pacific Lines. The car arrived December 24, 1946, at destination, Christmas Eve day. A. C. Wassard Company was notified at 8:00 a. m., December 26th. The car was placed on the grain bulletin at the Los Angeles Grain Exchange and placed on the grain exchange track December 30, 1946. On that date it was inspected by C. S. Mahar, a licensed inspector, Los Angeles, California, and was certified as No. 3 white corn, showing foreign material four per cent.
January 7, 1949, plaintiff received a telegram from A. C. Wassard Company advising that buyer could not accept corn on account of grade; that an appeal grade was made showing total damage to be 5.7% cracked corn and 4% foreign material. The telegram did not advise that draft was unpaid.
January 13, 1947, the local agent of the Missouri Pacific Railroad advised plaintiff that the car was still unclaimed and that the Southern Pacific was requesting disposition of the corn, which was now certified as hot, mouldy and musty and of distinctly low quality.
January 15, 1947, plaintiff received a communication, by mail, from Southern Pacific Lines advising that the grain was undisposed of. The evidence shows that on January 14, 1947, plaintiff made disposition of the corn, through the Quaker Oats Company of Los Angeles, for $1409.02. Plaintiff was forced to pay $160.73 demurrage and items of transportation expense.
In this opinion we will refer to appellant as plaintiff and respondent as defendant, being the position they occupied in the lower court.
The only question before the court for determination is the sufficiency of plaintiff's evidence to make a submissible case.
Under points and authorities plaintiff's assignment of error No. I states:
"In viewing the propriety of directing a verdict for one of the parties, the evidence of the adverse party must be taken as true, and considered in light of the evidence most favorable to him."
To support this statement of the law plaintiff cites Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292; Kelley v. Absher, Mo.App., 210 S.W.2d 531; and Miles v. Ozark Bowl, Inc., Mo.App., 250 S.W.2d 849.
This law is so well settled as to need no additional citations of authority.
In determining the sufficiency of the evidence to make a submissible case we must consider the whole evidence and give plaintiff the benefit of all facts and circumstances favorable to it or tending to support its theory of the case with every reasonable inference that may be drawn therefrom.
Plaintiff's assignment of error No. II is as follows:
"A common carrier receiving property for transportation from a point in one state to a point in another state shall issue a receipt or a bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property."
To support this declaration of law plaintiff cites 49 U.S.C.A. § 20, Par. (11).
In the case at bar the shipment of the grain in question was an interstate shipment and the rule governing defendant's liability must be sought in the "acts of Congress" and the "common law as accepted and applied in the federal tribunals." Singer v. American Express Co., 203 Mo. App. 158, 219 S.W. 662, 663.
Title 49 U.S.C.A. § 20, Par. (11), reads as follows:
"Any common carrier, railroad, or transportation company subject to the provisions of this chapter receiving property for transportation from a point in one State * * * to a point in another State, * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States * *."
A careful reading of this section of the statute will disclose that plaintiff failed to include that part which says, "caused by it or by any * * * common carrier, railroad, or transportation company to which such property may be delivered".
In Singer v. American Express Co., supra, 219 S.W. on page 663, the law is stated:
"* * * The court then asked, What is this liability thus imposed upon the carrier? and answered the question in these words:
"It is a liability to any holder of the bill of lading which the primary carrier is required to issue "for any loss, damage, or injury to such property caused by it," or by any connecting carrier to whom the goods are delivered. The suggestion that an absolute liability exists for every loss, damage, or injury, from any and every cause, would be to make such a carrier an absolute insurer, and liable for unavoidable loss or damage, though due to uncontrollable forces. That this was the intent of Congress is not conceivable. To give such emphasis to the words "any loss or damage" would be to ignore the qualifying words "caused by it." The liability thus imposed is limited to "any loss, injury, or damage caused by it or a succeeding carrier to whom the property may be delivered," and plainly implies a liability for some default in its common-law duty as a common carrier.'" Bragg v. Payne, Mo.App., 235 S.W. 148.
We hold that under the decision in this case the defendant is not an absolute insurer against every loss and if that is what is meant by plaintiff's second assignment of error, we cannot agree with it. The liability in this case must arise from some default in the common-law duty of the defendant as a common carrier. The defendant must have done some act not justified by the common law, or omitted to do some act required by that law, which caused the loss.
In the case at bar plaintiff alleges that defendant, by five different allegations of negligence, caused the injury complained of.
In Ozark Fruit Growers' Ass'n v. St. Louis-San Francisco R. Co., 226 Mo.App. 222, 46 S.W.2d 895, this court, speaking through Judge Cox, made the following statement of law on page 896 of the opinion:
"Defendants in error contend that this suit is not based on the common-law liability of the carriers as insurers, but, since plaintiff in its petition alleged negligence, it can only recover by proving the negligence alleged, and cites State ex rel. [Atchison, T. S. F.] Railway [Co.] v. Trimble, 302 Mo. 8, 257 S.W. 104, and other cases, to sustain that contention. We agree with that contention and shall not review the authorities on that question. It appears to be settled in this state that, even when the facts will permit a suit against a common carrier as an insurer of freight transported by it, yet, if the pleader alleges negligence, he must stand upon his allegations and prove the negligence alleged or fail."
It is incumbent upon plaintiff to prove one or more of the assignments of negligence in order to recover.
Plaintiff's assignment of error No. III reads as follows:
"Where there is an unusual delay in delivery of goods shipped by common carrier, and no notice is given, the railroad company is liable to the consignor."
We presume that plaintiff intended to complain that the court erred in directing a verdict because the evidence on the part of plaintiff showed there was an unusual delay in the transporting of the car of corn to its destination or that the corn was not transported within a reasonable time as complained in his assignment of negligence numbered I.
To support this assignment of error, if it can be considered as such, plaintiff cites Dancinger Bros. v. Chicago, R. I. P. Ry. Co., Mo.App., 182 S.W. 120.
This case was an action for the value of certain liquor shipped over defendant railroad. The record discloses that plaintiff shipped goods to C. L. Johnson, consignee, under a written contract or bill of lading containing a provision to "notify C. L. Johnson" of the arrival of the goods; and the further provision to "return shipment in ten days if not accepted." There was an unusual delay in the arrival of the goods at Coalgate, and when they did arrive defendant stored them without notifying Johnson that they had arrived. The goods were destroyed in nine days by fire. The court states the following law on page 121 of 182 S.W. 121:
"The question in the case is whether defendant, at the time of the fire, bore the relation to the goods of warehouseman, or carrier. If the former, it is only liable for negligence, and if the latter, it is liable as an insurer to safely carry and deliver. * * *
"* * * If there has been such delay in arrival, then the carrier must notify the consignee when the goods do arrive, and until such notice is given, the relation of carrier continues. * * *"
At common law a common carrier receiving freight for transportation implies a contract that the freight shall be delivered at destination within a reasonable time. Frewley v. Atchison, T. S. F. R. Co., 220 Mo.App. 1189, 299 S.W. 93.
To prove negligence for failure to deliver the property within a reasonable time it was incumbent upon plaintiff to show, first, that the corn was not delivered within a reasonable time and, secondly, to show that the delay in delivery caused the injury complained of.
The evidence on this point is undisputed. The corn was shipped December 12, 1946, destination, Los Angeles, where it arrived December 24th, Christmas Eve. The bill of lading required defendant to notify A. C. Wassard Company, purchaser, of the arrival of the grain. The 25th being Christmas Day, Wassard Company was notified at 8:00 a. m., December 26th. The car was placed on the grain exchange track December 30th. Now it is admitted that at the time the grain arrived at destination and at the time it was inspected December 30, 1946, by a licensed government inspector, the corn was in good condition. Therefore, if there was a delay in delivery up to this time, admittedly, there was no damage. Rudy v. Cleveland, C., C. St. L. R. Co., Mo.App., 278 S.W. 814; Inzerillo v. Chicago, B. Q. R. Co., 225 Mo. App. 1213, 35 S.W.2d 44.
Mr. Bowman, testifying for plaintiff, as to what would be a reasonable time for the transportation of the grain in question, said that he did not have any time schedules as to the time required for such transportation but knew pretty well about the time of arrival of shipments to most destinations. He stated this knowledge was based on experience had in shipping and that the time of shipment runs usually from 48 hours to seven days to more distant points and this shipment should not have required more than seven days. The court sustained an objection, however, to this testimony. We think that the testimony was insufficient to submit the question of negligence on the theory of delay in delivery. The jury would have to surmise or guess what time would constitute unreasonable delay in transportation. From the evidence it is clearly shown that this delay, if any, did not cause the injury.
The injury complained of was caused by the deterioration of the grain in question after it was placed on the grain exchange track and after December 30, 1946. We think possibly that the testimony would show there was no damage to the grain until after January 7, 1947, the date on which plaintiff was notified, under the testimony by A. C. Wassard Company, that they would not accept the corn. It would seem that defendant had carried out its part of the contract, as shown by the bill of lading, when it notified the purchaser, as directed by the consignor, and it would further seem that after the purchaser had notified plaintiff of their refusal of this shipment of grain, there was a duty placed upon plaintiff to take action to prevent damage to the same.
Now the evidence discloses that plaintiff was advised by the Missouri Pacific Railroad Company, January 13, 1947, through its local agent, at Sikeston, that this shipment of grain was still unclaimed and that the Southern Pacific requested disposition of the corn which was now musty, hot and mouldy and of distinctly low quality. The evidence showed that plaintiff, at that time, immediately acted and had the Quaker Oats people dispose of the grain for $1409.02. The evidence showed that had the corn been accepted in the condition it was in when shipped, the sale price would have been $3,575.00.
We agree with the abstract proposition of law stated by plaintiff in point III that where there is negligence in the delivery of corn by unreasonable delay causing damage, defendant is liable, but, we hold that the evidence in the case wholly failed to prove this allegation of negligence. There is not sufficient evidence offered upon which reasonable minds could differ upon that question. Taking all of plaintiff's evidence as true and considering it in the light most favorable to it, has failed to make a case on this assignment of error.
Assignment of error No. IV reads as follows:
"If a consignee refuse to receive goods consigned to him, it is the duty of the carrier to protect the interests of the owner, and the carrier should do what is reasonable under the circumstances."
We agree with this statement of law, but, under the circumstances in this case, defendant was required to notify the purchaser at destination, which it did, and then the purchaser, who undoubtedly was the agent of plaintiff, notified plaintiff before there was any damage to the corn that they refused to accept the shipment. So we think plaintiff's testimony shows that defendant performed its duty under the circumstances.
Assignment of error No. V makes an abstract statement of law as follows:
"The question as to what is a reasonable time in delivery of goods by a common carrier is one for the jury."
There is no question but what this is the law, but, before there can be any question for a jury, there must be some evidence adduced which would warrant a submission of such a question to the jury. The evidence upon which reasonable minds might differ and, as we have said before, there was no probative evidence as to what a reasonable time in delivery of the goods in question would be and, furthermore, there was no proof that such failure caused any damage to plaintiff.
In plaintiff's petition it complains that defendant had no legal right to permit an inspection of the corn without requiring consignee to produce bill of lading. This point was not briefed or any authority cited to support it and, therefore, was abandoned.
We find that plaintiff's evidence failed to make a submissible case under the theory of unreasonable delay in shipment; that it shows the damage was caused by the buyer after the corn was delivered in good condition, the delay being mostly caused by inspections brought about by improper government inspections which accompanied the corn; that this damage was further caused by plaintiff, itself, in failing to act when notified by the buyer of the corn on January 7th that it refused to accept the shipment because it was not of the grade designated. We think the evidence, almost conclusively, shows that defendant, through its connecting carrier, carried out the instructions of plaintiff in the bill of lading by notifying the buyer at destination. Plaintiff designated the buyer as his agent to receive notice of the arrival of this shipment and notice to the buyer was notice to plaintiff. We hold the trial court properly found that there was not sufficient evidence to make a submissible case.
Judgment affirmed.
VANDEVENTER, P. J., concurs.
BLAIR, J., not sitting.