Watkins National Bank v. Cleveland, Cincinnati, Chicago & St. Louis Railway Co.

ELLISON, J. Plaintiff brought this action to recover damages charged to have been sustained by reason of defendant’s having issued two bills of lading in violation of chapter 79, Revised Statutes 1899. It recovered judgment in the trial court. I. It appears that two cars of flour were shipped from a point in western Kansas to Kansas City, Missouri, over the Missouri Pacific Railway Company. That the bills of lading therefor were owned by one Pierson, and were mailed from point of shipment to his agent at Kansas City. After the flour arrived in Kansas City and was on the track of the Missouri Pacific, and was yet in cars as originally shipped, this agent surrendered the bills of lading to that company’s general freight agent at Kansas City and took from him two other bills of lading, one for each car, reciting that the cars were received at Kansas City. These bills showed that the flour was destined for New York City over the Missouri Pacific as far as St. Louis, Mo. Pierson’s agent then took the two bills to an agent, which defendant maintained at Kansas City, Missouri, and the latter took them up and issued to Pierson the two bills in controversy, reciting that the defendant had received the flour from Pierson in good order and condition and agreeing to carry it to [252] destination over its road, or otherwise, for a through rate named. Pierson then drew his draft for the shipments on H. A. Thissell, New York City, attached it to the bills of lading and negotiated the same to' the plaintiff’s bank. The flour was afterwards so damaged by the unprecedented flood of 1903, while yet on the tracks of the Missouri Pacific railway at Kansas City, as to be practically worthless. After the flood the flour was taken over the Missouri Pacific to St. Louis, where one car was received by defendant and taken as far as Cleveland, Ohio, where a connecting carrier refused it and it was sold by defendant for a small sum. The other car was refused by defendant and was sold by the Missouri Pacific for a small sum also. It is stated that the proceeds of these sales did not amount to more than the freight charges. The facts were the defendant had no railway at Kansas City, nor in the State of Missouri, and, of course, had not received the flour as stated in the bills of lading. The statute, chapter 79, Revised Statutes 1899, section 5052, prohibits any railroad or other transportation company from issuing a bill of lading for freight unless such freight has been, at the time, actually shipped and put on board of its cars to be carried as expressed in such bill. “The title to this chapter and every section of the act indicate the purpose of its enactment. It was designed to prevent the issue of false bills of lading and warehouse receipts ” [State v. Kirby, 115 Mo. 440.] The law limiting the power and authority of an agent of a public carrier to bind such carrier is so strict that it requires that before the authority exists in the agent, so far as to bind the .carrier, the freight must have been actually received on the carrier’s vessel or car. [Bank v. Laveille, 52 Mo. 380; Schooner Freeman v. Buckingham, 18 How. 182; Pollard v. Vinton, 105 U. S. 7.] The frequent frauds thus practiced by agents of carriers issuing bills of lading and the carrier escaping liability to endorsees of such bills, because the freight [253] was not actually received and shipped, as well as other reasons, led to the enactment of this stringent statute, which absolutely prohibits, under most severe punishments, the issuing of such- bills until the carrier has actually received the freight itself. The transaction in this case was in the face of the statute. The freight was in the possession of another transportation company and, in point of fact, was never all delivered to the defendant. One car was refused by defendant; and the other, though received, was rejected by a connecting carrier; each of these refusals on account of the destruction of the flour as a commercial commodity. We gave construction to the statute relied upon by plaintiff in the cases of Bank v. Water Power Co., 58 Mo. App. 532; Bank v. Railway, 69 Mo. App. 246; and Smith v. Railway, 74 Mo. App. 48; and need do no more now on this branch of the present controversy than to refer to those cases. II. But defendant set up in its defense that, notwithstanding it had no line of road at Kansas City, nor in Missouri, yet it had a freight agent at Kansas City to procure freight for transportation to the east over its line or lines of road, who was authorized to sign and issue bills of lading in its name. That this agent issued-the bills in controversy and that the Missouri Pacific railway, in whose cars and in whose actual possession the flour was at the time, was the agent of this defendant and, as such, had possession of the flour for it. That issue, of fact regarding the existence of such agency of the'Missouri Pacific railway was submitted in instructions and the finding was against the claim. That question was therefore determined against defendant. III. . But is is urged that if the carrier afterwards does in fact receive the freight, as under the prior issued bill of lading, that he becomes bound. It has been decided that a carrier could cure the invalidity of the bill of lading by such after receipt, and we think, as to the [254] mere matter of his liability to the shipper or the shipper’s assigns, he could. [The Idaho, 93 U. S. 575; Robinson v. Railway, 16 Fed. Rep. 57; The Farwell, 8 Bissell 64.] But we do not see how that can affect the rights of the parties in this case. Here, if the defendant had obeyed the statute and refused to issue a bill of lading until the cars of flour had been actually delivered to it, there would not have been any issued, for, at that time, its commercial value had been destroyed by the flood. Thus, the plaintiff would not have had the opportunity to be deceived and damaged by the act of defendant. IV. Neither do we see how the right of a carrier to contract for through shipments of freight beyond its own line can affect the disposition of this case under the statute in question. A contract for a through shipment does not prevent the carrier from first getting possession of the property to be shipped. V. We will not enter into a discussion of the objection made to the letters of defendant’s agent Boisseau. We are satisfied from the facts indisputably, shown, in truth practically conceded, that no other judgment could have been had than the one rendered. But, in our opinión, the letters were manifestly admissible and were therefore properly received in evidence. Th judgment is affirmed. All concur.