Blackmer & Post Pipe Co. v. Mobile & Ohio Railroad , 137 Mo. App. 479 ( 1909 )

GOODE, J.

(after stating the facts). — 1. (a) Several grounds of liability are indicated in the petition and in the instructions requested by plaintiff. One is a joint contractual liability of the four railway companies. These companies are stated to have owned connecting lines of railway which, taken together, extended from plaintiff’s factory in St. Louis to New Orleans; and in the first refused instruction (R-l) plaintiff asked the court to advise the jury on the hypothesis of a joint undertaking by the four, defendants to transport the property from the place of shipment to destination. (b) Though inconsistent with that theory, plaintiff next avers the Mobile & Ohio Company had a business office in St. Louis, was doing a freight and passenger business in the State of Missouri, making through freight rates over said route from said city of New Orleans, “and undertaking to carry freight by means of said other railroads connecting with its road as aforesaid, from St. Louis to New Orleans, in its own cars and other cars furnished by it to shippers, including this plaintiff.” Said averments suggest that the pleader intended to declare against the Mobile & Ohio Company alone, as having contracted to carry over the entire route and employed the other three companies as agents and their railway as means in performing the contract of affreightment. But the subsequent averments are that plaintiff delivered the goods in controversy not to the Mobile and Ohio Company, but to the defendants (i. e. all of them) and the defendants received the goods and agreed, in consideration of certain freight charges, to carry them from plaintiff’s factory to New Olrleans. The petition then proceeds to charge all the defendants with defaults in respect of the carriage of the property between said points.

(c) Besides those repugnancies, allegations to show both a breach of the alleged contract of defendants to convey the goods from St. Louis to New Orleans and a breach of the legal duty of the defendants as common carriers to convey them safely, except as against the act of God or the public enemy, are intermingled in the same count, thus combining in one petition and one count, causes of action ex contractu, and ex delicto. which is not good pleading. [1 Mo. Ann. Stat. (R. S. 1899) sec. 593; Ederlin v. Jones, 36 Mo. 350; The Southworth Co. v. Lamb, 82 Mo. 242; Barnes v. Railroad, 119 Mo. App. 303.] Though no point was made against the petition by motion or demurrer, and, in the main, the case was treated in the instructions as one ex delicto on our statute providing for recovery for negligent injury to property while in transit, the petition ought to be cleared of its contradictory and confused theories, which have rendered the case well-nigh unintelligible.

(d) A shipper whose goods are damaged while being transported by a common carrier, has the choice of declaring either in assumpsit on the contract of affreightment, or in tort for breach of the duty imposed on the carrier by law to carry safely. [3 Hutchinson, Carriers (Mat. & Dick. Ed.), secs. 133 et seq. (orig. sec. 749); Heil v. Railroad, 16 Mo. App. 363; Wernick v. Railroad, 130 Mo. App. 37; Clark v. Railroad, 64 Mo. 446.]

2. No joint contractual liability of the Missouri Pacific Company and the Terminal Association with the other defendants was established. The evidence did not show either a partnership or such an association in business as would present the appearance to patrons of a general purpose to undertake jointly the transportation of freight, or a specific joint undertaking in respect of the shipments in question. The facts touching those points were as follows: Neither the Mobile & Ohio nor the New Orleans & Northeastern Company had tracks in Missouri. The former company’s line extended from East St. Louis, Illinois, southward, but not to New Orleans, and connected with the tracks of the New Orleans & Northeastern Company at Meridian, Mississippi. The shipments we are dealing with and other shipments by plaintiff, were billed through to New Orleans by the Mobile & Ohio Company and the usage observed by said company, the Missouri Pacific Company, the Terminal Association and plaintiff was this: Plaintiff loaded the cars on its private switch which connected with the Missouri Pacific Company’s tracks in St. Louis, the latter company hauled, them over one of its branches six miles south, transported them by boat across the Mississippi river to the Terminal Association’s tracks which company hauled them six or seven miles to the Mobile & Ohio Company’s tracks where the latter took charge of them. The Missouri Pacific Company was paid one cent per hundred pounds for moving the goods from the factory to Carondelet, and four dollars per car was charged from Carondelet to the Mobile & Ohio tracks in East St. Louis, which sum was divided equally between the Missouri Pacific Company for its boat service, and the Terminal Association for hauling the cars to the Mobile & Ohio Company’s tracks. So far as appears the only business of the Terminal Association was, as it alleged, hauling cars between the termini of different railway companies in the vicinity of St. Louis. This practice was for the convenience of traffic, each of said three companies bearing its own expenses and conducting independently its own business. On the facts in proof, neither by implication of law nor express agreement, were the three companies mentioned joint promisors to plaintiff for the carriage of its pipes over the entire route. _ [1 Hutchinson, secs. 262, 263 (orig. 169) and passim secs. 249 (orig. 158) to 269.] If the receipt, issued by the Missouri Pacific Company might have been regarded as a bill of lading for through carriage, the acts of the parties preclude this view. The practice, and it was followed in the present case, was for plaintiff to surrender said receipt to the M'obile & Ohio Company and take a bill of lading from the latter covering the entire route; and if an agreement for through carriage was created hy the Missouri Pacific Company’s receipt in itself, the agreement was relinquished and the bill of lading issued by the Mobile & Ohio Company was substituted as the contract of affreightment; or perhaps it is more accurate to say the latter company was understood from the first to be the contracting carrier, and the Missouri Pacific Company and the Terminal Association its agents. In an action on the contract of shipment, there can be no joint recovery against the other defendants and the Missouri Pacific Company and the Terminal Association, because the latter were not copromisors with either of the defendants. Possibly the New Orleans & Northeastern and the Mobile & Ohio Companies might be held jointly answerable in contract for an injury occurring on the former’s line, if there was a through contract and no reduced rate. In such contingency the Mobile & Ohio Company would be liable as an insurer for loss anywhere on the route, and the other company for loss on its own line; and there would be sufficient privity of contract between plaintiff and the latter company for an action on the contract to lie against it for damage to the property while in its charge. [Halliday v. Railroad, 74 Mo. 159; 1 Hutchinson, sec. 236 (orig. 150).]

3. (a) Whether the bill of lading issued by the M'obile & Ohio Company constituted a contract between it and plaintiff for the carriage of the pipes from St. Louis to New Orleans, is one fundamental question in the case, and another is: was there a consideration for the exemption clauses in the bill of lading? As we have said in other cases, and as the Supreme Court intimated in Western Sash & Door Co. v. Railroad, 177 Mo. 641, if we had to answer this inquiry without regard to precedents, we would find it hard to say such a contract was one for through carriage by the Mobile & Ohio Company. But in its first interpretations of section 5222 of the statutes (3 Mo. Ann. Stat.) the Supreme Court decided said statute did not hinder a carrier which accepted freight to be transported by itself and connecting carriers, from restricting its liability as an insurer. As the statute must be dealt with in this opinion we will copy it for convenience:

“Whenever any property is received by a common carrier to be transferred from one place to another, within or without this state, or when a railroad or other transportation company issues receipts or bills of lading-in this State, the common carrier, railroad or transportation company issuing such bill of lading, shall be liable for any loss, damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may be delivered, or over whose line such property may pass; and the common carrier, railroad or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company, through whose negligence the loss, damage or injury may be sustained; Provided, that in any suit to recover for any loss, damage or injury to property transported by a common carrier and one or more connecting carriers, the plaintiff may join as defendants the original carrier and all connecting carriers, and shall be entitled to recover in such action from the common carrier, railroad or transportation company, through whose negligence any loss, damage or injury to such property was sustained, the amount of such loss, damage or injury, with its costs of suit, and may prosecute such action in any county in this state in which, as is provided by law, a suit may be maintained against either of such common carriers.” [R. S. 1899, sec. 5222, amended Laws 1905, p. 54.]

In' the leading decisions upon that law, it was declared the first clause of the section (which says when property is received by a common carrier to be transferred from one place to another within or without the State, etc.) implied the initial carrier might restrict its liability to its own line, nowithstanding the main purpose of the act was to make said carrier liable for negligence occurring on a connecting line; and notwithstanding, too, the next clause makes any railroad or transportation company that issues a receipt or bill of lading in this state, liable for loss, damage or injury to property caused by its negligence, or the negligence of any other carrier or company to which the property may be delivered or over whose line it may pass, and this interpretation of the statute is the settled law of the State. [McCann v. Eddy, 133 Mo. 59.] Though the opinion in the case just cited recognized the right of the first carrier to confine its liability to its own line, it restricted this right within narrower lines than those laid down previously in Dimmitt v. Railroad, 103 Mo. 433, wherein it was said, in effect, an agreement that the first carrier should be liable for loss or damage only on its own line, was equivalent to a contract to carry the property only to the end of said carrier’s line. This proposition was repudiated in McCann v. Eddy, wherein the court declared an initial carrier which issued a contract to carry goods to destination, could not for any consideration, limit its liability to losses happening on its own line or exempt itself from liability for the negligence of connecting carriers. The opinion said:

“We cannot, therefore, give such an interpretation to the statute as would permit a carrier to contract for a through shipment and at the same time exempt himself from liability on account of the negligence of connecting-carriers. Such an interpretation would in effect, operate as a repeal of the vital provisions of the law which declares a conclusive liability in such case. The statute does not undertake to change the law in respect to liability of a carrier for his own negligence, but to extend it to connecting carriers as well and declare a liability for negligence without regard to which was in fault.

“Under these views of the law, no difficulty is found in giving construction to the contract. The agreement to carry from Stoutsville to Chicago is absolute and unconditional. The thirteenth condition or covenant can only be regarded as an attempt, on the part of defendant, to relieve itself from the responsibility of answering for the negligence of the carrier by which it undertook to complete the contract. The statute forbids such a qualification of the contract. It can only be held to relieve defendant from its common law liability of an insurer.”

Oases have been brought within the scope of the rule thus stated, by construing shipping receipts like the one before us, to be agreements by first carriers to transport the freight to destination, thereby making said carriers responsible for damage carelessly caused while the property was in charge of connecting companies. These precedents are conclusive that the bills of lading in question were agreements by the Mobile & Ohio Company to carry plaintiff’s pipes from St. Louis to New Orleans. [Marshall v. Railroad, 176 Mo. 480; Western Sash & Door Co. v. Railroad, 177 Mo. 641.] The bills of lading say the property was received at St. Louis by the Mobile & Ohio Company to be transported by said “company to-----and thence by railroad, steamboat or other forwarding lines with which it connects, to --” The destination is left blank in the body of the receipt, but at the foot are the words: “Consigned to T. J. Shea, New Orleans, La.;” and still further below under this heading: “list of articles,” we find •the notation “care N. O. & N. E., F. W. Birchet.” The contract says among its printed conditions, the receiving company agreed to carry said property to destination if on its road, and if not on its road and the company guaranteed through carriage, then it agreed to deliver to such other carrier as the company might select, and did not agree to carry beyond its own line, or be responsible beyond under any circumstances. At the foot of the bill of lading and after the signatures, it was declared the fact that the property was marked beyond the company’s line would not be understood as an agreement to carry beyond. The evidence shows the Mobile & Ohio Company was accustomed to accept plaintiff’s goods for carriage from St. Louis to New Orleans, sometimes sending the property part of the way over the New Orleans & Northeastern railway and sometimes over the Illinois Central railway; that the Mobile & Ohio Company made a round rate for the whole shipment and the freight charge was collected at destination and divided among the companies which had hauled the goods. In dealing with such transactions, the courts have held the purpose of the statute in question “was to regulate the form in which the contract should be expressed, so as to require the carrier to embody the limitation directly and in unambiguous terms in the portion of the agreement reciting the contract to transport; and not to import or imply such limitation by way of exception or statement of conditions and qualifications, requiring on the part of the shipper a critical comparison of clauses of the contract in order to reach a proper understanding of its meaning. That is to say, that the restraint imposed by the statute, was not a curtailment of the power to limit liability to the line of the carrier accepting the freight, but a regulation of the form in which the contract having that object in view, should be drawn.” This language was used by the Supreme Court of the United States in Railroad v. McCann, 174 U. S. 580, in expressing what said court deemed to be the interpretation put on the statute by the Supreme Court of Missouri, and after-wards was copied and approved by our Supreme Court in Western Sash & Door Co. v. Railroad, supra. It might he thought the Legislature aimed to fasten on the carrier which received the goods for transportation over its own and connecting lines, responsibility for tortious injuries occurring anywhere on the route, rather than merely to prescribe a form for a bill of lading. Be this as it may, the effect of the decisions of the Supreme Court is to make a receipt naming the destination, a contract to carry through, unless the point to which the issuing carrier agrees to convey the goods, 'is stated in that portion of the receipt which recites the agreement to transport, and despite an attempt to limit the liability to damage occurring on its own line by inserting elsewhere exceptions, exemptions and conditions, such as that the carrier will only transport to the end of its own line, etc. The receipts so construed in Western Sash & Door Co. v. Railroad and Marshall v. Railroad, supra, were not materially different from those before us, and on the authority of those and other like precedents, we hold the Mobile & Ohio Company contracted to carry the pipes from St. Louis .to New Orleans. We observe that if a receipt is construed to be a through contract, it is so for the purpose of extending the initial carrier’s liability as an insurer as well as for negligence; and as the Interstate Commerce Act appears to forbid any limitation of a carrier’s liability as insurer Avhen it contracts to carry through (sec. 20 Int. Com. Act. as amended January 29, 1906) this onerous obligation must attach to interstate shipments out of Missouri, unless the bill of lading is so drawn as to satisfy the courts it is for local carriage only.

(b) If the above views are sound, the Mobile & Ohio Company’s liability to plaintiff for the breakage depends on several matters. It became liable at common laAV as an insurer, and without reference to the statute, for damage occurring anywhere on the route, but might restrict this common law liability as insurer for a consideration ; such as a reduced rate of freight. [Hutchinson, Carriers, sec. 240.] These shipments occurred before the amendment of the Interstate Commerce Act in 1906 forbade such a limitation. [Id., sec. 235, 2; Id;, p. 600.] If, therefore, the property was damaged in transit, but not by negligent handling, and there was a reduced rate of freight, neither the Mobile & Ohio Company nor any other was liable. But if there was no reduction in the rate of freight, the Mobile & Ohio Company must respond on its common law liability wherever the breakage occurred and whether due to negligence or not. [McFadden v. Railroad, 92 Mo. 343, 349; Scott Co. Mill. Co. v. Railroad, 127 Mo. App. 80.]

(c) Looking next at the case as coming on the statute supra, inasmuch as we have held the contract to carry was a through contract, the Mobile & Ohio Company was liable for the negligence of itself or of the New Orleans & Northeastern Company, and liable, too, for the negligence of the two minor companies as agencies or means used by it (The Mobile & Ohio) in transporting the property. There would be no difficulty on this theory of the case if the Mobile & Ohio Company had been the sole defendant. But plaintiff has joined with it the other companies, including the New Orleans & Northeastern Company, which was a connecting carrier only, by virtue of the last provision of the section, supra, which was added to the statute as an amendment in 1905. See Laws 1905, p. 504. Said proviso allows the owner of damaged property which has been transported by several connecting carriers to join in his action for damages the original carrier and all the others, and says he shall be entitled to recover from the one through whose negligence the loss was sustained. In view of this joinder, the question is whether it was incumbent on plaintiff, in order to obtain judgment against either company, to prove not only .the property was damaged by negligence, but by what company. It will be observed the statute as it stood before, permitted the original carrier, if judgment was obtained against it by the shipper and it was innocent, to recover over from the connecting carrier which Avas to blame. Plaintiff might have sued the Mobile & Ohio Company and have obtained judgment against it on proof the property was carelessly injured Avhile in transit, and the Mobile & Ohio Company would have had its action over against the New Orleans & Northeastern Company if the latter was in fault. Having joined them, we think that upon a proper construction of the statute, it was incumbent on plaintiff to fasten negligence either on the New Orleans & Northeastern Company, in order to obtain judgment against it, or else on the Mobile & Ohio Company, or one of its agents the Terminal Association or the Missouri Pacific Company, in order to obtain judgment against it. This rule may curtail the efficiency of the statutory remedy, but the shipper still has an option to sue the original carrier alone or join the others. Having elected to join, plaintiff took whatever burdens were incident to this course and one of them was to prove which company was culpable. [Hutchinson, Carriers, 1347, 1355 (orig. secs. 760, 767) and citations; Chlanda v. Transit Co. et al., 213 Mo. 244.] On this question able arguments and briefs submitted at two hearings have helped us. We appreciate the importance of the rule invoked by plaintiff that no proviso of a statute shall be construed in repugnancy to the enacting clause if another construction is possible, and realize the wisdom of holding initial carriers liable for losses to property due to negligence occurring on a connecting line. Nevertheless, our judgment is that any other view of the amended statute than the one we have taken, would sacrifice the right the statute accords to initial carriers to be indemnified for damages paid to shippers because of the fault of connecting carriers. This right may be enforced by action over against the guilty company when the first company alone is sued; but if said company may be joined as defendant with connecting companies, and a general verdict given against it even when the evidence proves the loss was due to the fault of another company, the first company would lose its right to indemnity, because the judgment in the action by the shipper would be a bar to its claim in an action over against the guilty company. It would stand on the record in the action of the shipper as a joint'tortfeasor. We cannot escape the conviction that the proviso is so framed as to confine the recovery, when several carriers are made defendants, to the one whose fault is proved' to have caused the loss.

4. The foregoing remarks set forth our opinion, of the general propositions of law which ought to control the trial and determination of the case, and we will now examine the instructions to ascertain if they correctly state the law.

(a) Refused instruction R-4 was incorrect because of lack of evidence to show the Missouri Pacific Company and the Terminal Association were agents of the New Orleans & Northeastern Company in handling plaintiff’s property. There is testimony to prove they were agents of the Mobile & Ohio Company to get the property from the factory to the Mobile & Ohio Company’s tracks in East St. Louis, and if they were, the latter company would be liable for their negligence. But the instruction coupled with the Mobile & Ohio Company the New Orleans & Northeastern Company as a possible principal for which the Missouri Pacific and the Terminal Association were agents.

(b) Plaintiff’s fifth refused instruction (R-5) is substantially covered in so far as it is accurate, by instruction P-1 given by the court of its own motion, and which advised the jury defendants, in undertaking to act as common carrier of freight, assumed the duty to accept and carry freight offered by any person who would pay the rate charged by said companies, except in so far as limited by special contract, but in no event could the companies escape liability for loss or damage occasioned by the negligence of themselves, their agents or servants by a contract with the shipper.

(c) The sixth refused instruction (R-6) was covered by the given instruction P-2, except that the one refused applied to all the defendants, whereas the one given applied only to the Mobile and Ohio and the New Orleans & Northeastern Companies, inasmuch as the court had instructed for a verdict in favor of the Missouri Pacific Company and the Terminal Association. Plaintiff’s refused instruction R-6 was so drawn as to apply only to the shipment of the four cars mentioned in the first count of the petition, though it might also have applied to the other car, and the instruction on the point given by the court (P-2), was made to apply to the five shipments. The only question then, in connection with the alleged error in refusing instruction R-6, is whether the court erred in modifying it so as to preclude a verdict against the Missouri Pacific and the Terminal Association, a point disposed of in what is said supra and infra.

(d) The refused instructions R-7 and R-8 regarding the measure of damages, in the event of a finding for plaintiff on the two counts of the petition, were given in instructions P-5 and P-6 granted by the court, with the exception of these words: “Unless you find the facts to be that the contract of shipment was under a reduced rate, in which event the value of the pipe in New Orleans is immaterial.” The same ruling was declared in the given instruction D-7. Its effect was to preclude an award of damages if the contract of shipment provided for a reduced rate, and whether or not this ruling was right will appear from what is said infra.

(e) The instruction P-3 given by the court of its own motion, told the jury that if plaintiff paid the regular rate of freight on the shipments to the Mobile & Ohio and the New Orleans & Northeastern Company, and there was no deduction by defendants or special rate awarded plaintiff, the latter was not bound by the special contract set up in the answers.of the defendants; and if the jury further believed that defendant, the Mobile & Ohio Company undertook a through shipment and to carry the pipes to a point beyond its own line, ■ to-wit, New Orleans, the jury should disregard the stipulations in the bill of lading which sought to limit liability for negligence of connecting carriers; but defendant, the Mobile & Ohio Company was not liable as an insurer for breakage, if any occurred, on the line of an independent connecting carrier not acting at the time as its agent for the carriage of said pipes. Said instruction propounded two different propositions; first, that if the Mobile and Ohio Company and the New Orleans & Northeastern Company collected the regular rate of freight for tbe shipments, the special stipulations in the bill of lading were not binding on plaintiff, and this is the law. Second, if the Mobile & Ohio Company undertook a through shipment, the jury should disregard the exemptions in the bill of lading which limited the Mobile & Ohio Company’s liability for the negligence of connecting carriers. It will be seen the latter proposition makes the Mobile & Ohio Company liable for the negligence of a connecting carrier if it issued a through hill of lading, which is the law. [McCann v. Eddy, supra.] Its last clause was erroneous; for if a full rate was paid, the Mobile & Ohio Company was an insurer oyer the whole route. [Scott Co. Mill. Co. v. Railroad supra.]

(f) The sixth instruction (D-6) given for defendants, was erroneous in exonerating the defendants from liability if the quantity of breakage was only such as was usually incident to the shipment of pipes. This was not the law as to the Mobile & Ohio Company, if the contract was a through one, unless there was a reduced rate of shipment, as to which the evidence is contradictory. The bill of lading provided for immunity from liability for breakage in consideration of a reduced rate, and this would exonerate from the common law liability in case there was a reduced rate.

(g) The instruction given by the court of its own motion (P-4) allowed the Mobile & Ohio and the New Orleans & Northeastern Companies no benefit of the exemption contained in the bill of lading if the regular through freight rate was paid on the shipment, but said the jury might consider the clause of the bill of lading which provided no carrier should be answerable for damage not occurring on its portion of the route, in connection with the question of whether the two principal defendants acted jointly or severally in the transaction and whether their liability to plaintiff was joint or several. There is evidence to prove a joint promise by said defendants to carry and they would not be liable jointly except in the contingency discussed supra (1, f).

(h) The given instruction D-3 was erroneous as to the Mobile & Ohio Company because it said nothing about a reduced rate of freight as the condition on which the restriction of the common law liability of the Mobile and Ohio must be based. On the contrary, instruction D-5, given for defendants, rightly took account of the rule that there must have been a reduced rate of freight to exempt said company from liability if breakage occurred enroute from any cause except the act of God.

(i) The instruction D-7 and the last clauses of instructions P-5 and P-6, precluded the jury from considering the value of the property at New Orleans if the contract of shipment was not for a reduced rate. Just what was meant by this advice is obscure; but we suppose it was given on the theory that plaintiff’s measure of damages, if he was entitled to recover at all, would be the difference between the value of. the property at destina-tion in its damaged state and what its value would have been if undamaged; and it looks like the intention was to prevent a verdict for plaintiff if there was a reduced rate. Even if such a rate was allowed, these companies would be liable for damage due to careless handling; that is, the guilty one would be. If a full rate was charged, the Mobile & Ohio Company would be liable for the entire breakage. In the latter contingency the Mobile & Ohio Company was an insurer, and the measure of damages to be awarded against it would be tbe difference between tbe value of tbe shipment at New Orleans if tbe pipes were sound and tbe value with some of them broken. In tbe second case tbe measure of damages to be awarded against tbe company in fault, would be tbe difference between tbe value of tbe shipment at New Orleans, less usual breakage, and its value in tbe condition it was in. That is to say, tbe responsible carrier would only have to answer for such breakage as was due to its fault.

(j) Tbe instruction D-8 given for defendants involved tbe notion that tbe burden was on plaintiff to prove which carrier’s fault damaged tbe pipes, but tbe charge lost sight of tbe possible liability of tbe Mobile & Ohio Company as an insurer in tbe event tbe charge for carriage was not reduced.

(k) As regards notice of claim for loss, tbe jury were instructed (D-l) written notice must have been-given in writing to tbe agent at tbe point of delivery within thirty days after delivery, and if no such notice! was given to tbe agent of tbe New Orleans & Northeastern Company, tbe suit could not be maintained, unless tbe jury found tbe plaintiff, after said thirty days, made claim in writing to said company (N. O. & N. E. Co.) and tbe Mobile & Ohio Company, as its agent for that purpose, and this notice was accepted and treated as a claim under said proviso; or unless, further, tbe jury found, under other instructions, tbe contract and bill of lading was not made at a reduced rate. Tbe latter proposition was decided by tbe Supreme Court in George v. Railroad, 214 Mo. 551, 113 S. W. 1099 and under said authority there must be a consideration to sustain tbe stipulation making notice of a claim for damages a condition precedent to recovery by tbe shipper; but as said repeatedly, tbe jury might have found there was a consideration in tbe present case. Tbe instruction was otherwise erroneous. Tbe correspondence with tbe General Freight Agent of tbe Mobile and Ohio Company shows conclusively said company waived the omission to give notice in thirty days, and hence plaintiff’s action could not he defeated as against said company by the omission. [Summers v. Railroad, 114 Mo. App. 452, 458; Keyes, etc., Co. v. Railroad, 13 Mo. App. 144.] As regards the New Orleans & Northeastern Company, the evidence inclines to prove a uniform course of business prevailed for plaintiff to give verbal notice to its agent of such a claim, which was accepted and treated as good notice; and this usage would, if it had been recognized by said company, be binding. [2 Hutchinson, Carriers, sec. 1080.]

5. The Terminal Association and the Missouri Pacific Company would be liable in tort for their negligence, but as there was none proved against them, the court was right in directing a verdict in their favor. And we would sustain the judgment for the other two defendants for want of evidence to prove which was negligent, but for the fact that the petition was treated as counting on a possible liability without regard to negligence, and some of the given instructions (P-3 and P-4) submitted this ground of recovery.

6. We have been pressed to affirm this judgment as to the Terminal Association and the Missouri Pacific Company even if it must be reversed and the cause remanded as to the other defendants. Judgments are sometimes reversed as to one party and affirmed as to another. [Hunt v. Railroad, 89 Mo. 607, 609; Kleiber v. Railroad, 107 Mo. 240; State ex rel. v. Tate, 109 Mo. 270.] We have found no case in which this Avas done except when the judgment on appeal settled the litigation as to all parties. If a remand is necessary, such a course Avould seem to be in violation of the statute which says there must be but one final judgment in an action. [R. S. 1899, sec. 733.] Said statute has been held to mean the one final judgment for which it provides shall dispose of the controversy as to all the parties to the cause. [White Lime Co., v. Bauman, 55 Mo. App. 204; Sater v. Hunt, 61 Mo. App. 228.] Now, if we should affirm the judgment as to the two companies mentioned, we would have a final judgment here in their favor, with the cause remanded for another trial and judgment disposing of the controversy as to the remaining defendants; which would be opposed to the authorities supra. But we are of the opinion that as no evidence of negligence on the part of the Missouri Pacific Company or the Terminal Association was adduced, and as there is no common law liability against either of them, the verdict in their favor may be retained until the verdict comes in settling the controversy as between plaintiff and the other defendants, and one judgment may he réndered then completely disposing of the cause.

• The judgment is reversed and the cause remanded.

All concur.