American Storage & Moving Co. v. Wabash Railroad , 146 Mo. App. 224 ( 1909 )

GOODE, J.

(after stating the facts). — Plaintiff contends the transportation receipt, or bill of lading, issued by defendant, bound it to carry the property to Fortieth street and Princeton avenue, or, at least, made it responsible for the property to said destination; and hence, even allowing the words “care of Chicago Junction Railroad Co.” authorized delivery to the junction railroad company instead of plaintiff, the designated consignee, a delivery to the junction company at any other point than Fortieth street and Princeton avenue was not a compliance with the bill of lading and did not discharge defendant from liability for plaintiff’s loss of its lien. A case in point is cited, the doctrine of which would make defendant a through carrier and responsible for the property to the destination named — Fortieth street and Princeton avenue — notwithstanding the insertion in the receipt of the words “care of the Chicago Junction Railroad Co.” [Wohl v. Holt, 26 Wis. 703.] Perhaps that rule is within the principle of our decisions; though we find none which deals with facts exactly like those before its. [Marshall, etc., Grain Co. v. Railroad, 176 Mo. 480; Western Sash & Door Co. v. Railroad, 177 Mo. 641.] Defendant contends it was authorized by the bill of lading to turn the car over to the junction company at any point in Chicago, and hence is not answerable to plaintiff for Leigh’s having obtained the goods without discharging plaintiff’s lien. We pass by the contention regarding the point where defendant was empowered to turn the car over to the junction company, for in our view the question is not material as the record stands. From the .evidence it appears the Wabash Company itself delivered this property to Leigh, and unquestionably it had no right to do so until it received authority from plaintiff, which was the consignee designated in the bill of lading and had retained that instrument. [2 Hutchinson, Carriers (M. & D. Ed.), secs. 668 et seq.] Although the property was put in charge of the junction company to be hauled from defendant’s terminal to final destination, the admission of defendant’s chief freight clerk would support, and well nigh compel, the conclusion that defendant retained control of the property for the purpose of delivery; and for defendant to turn it over to Leigh upon his executing a bond of indemnity to defendant, as the clerk said was done, was manifestly a breach of its obligation and also of good faith. It seems the purpose of this proceeding was to coerce plaintiff into some kind of a settlement with Leigh, by giving Leigh the advantage of possession of the goods, so plaintiff could no longer hold them under its lien, thereby compelling plaintiff to obtain redress directly by suing Leigh, or indirectly by suing defendant, which had taken a bond of indemnity from him. The instruction requested by plaintiff predicated as one fact to be found, in order for a verdict to be given in plaintiff’s favor, that defendant itself had delivered the goods to Leigh. The instruction adhered strictly to the facts of the case, was sound law and should have been given.

As to whether, if defendant actually delivered the goods to the junction company and relinquished control over them, of which there is no proof in the record, it was a good delivery, we say not, but merely call attention to 2 Hutchinson on Carriers, sec. 676, and Schlesinger v. Railroad, 88 Mo. App. 273.

Defendant insists plaintiff cannot recover because it introduced no bill of lading except the so-called receipt, which recited the property was received subject to defendant’s bill of lading. No proof, was made by either side of another bill of lading for the shipment having been made out, or any form in use having been agreed upon as part of the contract, and the impression left is that nothing of the kind was done. This being so, the receipt itself constituted the contract between plaintiff and defendant. [Barrett v. Railroad, 9 Mo. App. 226.]

Two other technical points are made against plaintiff’s right to recover, but we consider them without merit.

The judgment is reversed and the cause remanded.

All concur.