Wichita Poultry Co. v. Southern Pacific Railway Co.

ELLISON, P. J. Plaintiff shipped a carload of chickens from Wichita, Kansas, to San Francisco, California consigned to its agents Stewart & Stevens, a commission firm in the latter city. There was delay in delivery and this action was instituted to recover damages. Plaintiff prevailed in the trial court. The case was tried by the court on an agreed statement of facts, by which it appeared that the Chicago, Bock Island & Pacific Eailway Company was the initial carrier and defendant the destination, or terminal carrier. That while the chickens were on the way Stewart & Stevens sold them to Fred Deal at Oakland, California, and notified plaintiff, who immediately gave an order, by telegraph, to divert the shipment to Deal at Oakland and this order was complied with by defendant. But thirty-five hours before the car arrived at Oakland, Deal had notified Stewart & Stevens that he would not accept the chickens and they then asked defendant’s ■ division freight agent at San Francisco to continue the shipment to them at San Francisco as originally billed. They had authority from plaintiff to divert shipments, but defendant had no notice of such authority, or that they were even plaintiff’s agents further than that they were merely consignees. This agent said he would do it, and handed the request to defendant’s agent in the operating department, who informed him that it could not he complied with. No notice of this refusal was given to Stewart & Stevens and the car was duly set out at Oakland, and Deal notified next morning. He still refused to take it and defendant’s agent at Oakland immediately, by telegraph, asked for orders from the initial carrier at Wichita, and, in response, was directed to comply with Stewart & Stevens’ request to continue the shipment to them at San Francisco, the original destination, and. this was done. It was agreed that the damages caused by this delay was $500, and that if the finding was for plaintiff, it should be in that sum. While the law is that the consignee may be regarded by the carrier as-the owner (nothing appearing to the contrary) (Smith v. Railroad, 145 Mo. App. 394, 406; South [580] ern Exp. Co. v. Dixon, 94 U. S. 549; 1 Hutchinson on Carriers, sec. 177); yet where the carrier knows the shipper to he the owner (as in this cáse) he is bound to recognize the right of such owner to give orders diverting the shipment, while en route, to any other person than the one named as consignee in the bill of lading. [2 Hutchinson on Carriers, sec. 660.] And if he should deliver to the consignee, or to the latter’s order, after receipt of an order from the owner consignor diverting the shipment to some other person, he would be liable to the consignor in conversion. The facts agreed upon show that plaintiff was the owner and that he was recognized as such by both defendant and Stewart & Stevens. In considering the question of defendant’s liability we must just of its action from the standpoint of its knowledge; for though it knew plaintiff to be the owner, the latter had not notified it that Stewart & Stevens had authority to divert the shipment, or were its agents. Therefore when defendant accepted and obeyed plaintiff’s order diverting the shipment from Stewart & Stevens at San Francisco to Deal at Oakland, it was acting strictly within its legal obligation and duty. And when, through its agent, it accepted an order from Stewart & Stevens who were without right to give such order, it had a right, subsequently, to ignore it. For, judged by the facts which were within its knowledge, compliance would háve been conversion. When defendant’s division freight agent informed the agent in the operating department of the request made by Stewart & Stevens, was it not reasonable and natural for him to say that they had no authority to make such request, that to comply with it would be to disobey plaintiff’s order to divert to Deal and render defendant liable? When Stewart & Stevens found that Deal would not take the chickens, they should have asked plaintiff to change the order, or have exhibited some evidence to defendant of their authority to change it, and the agreed statement of facts should show this. Especially is this true when it is remembered that after plaintiff ordered defendant to divert the shipment to a different consignee [581] they became strangers to the transaction and their interference, so far as defendant knew, was no more than that of an interloper. It seems to us that the effective cause of the delay and consequent damage in this case was the negligence of plaintiff in failing to notify defendant that it had given Stewart & Stevens authority to act for it in the premises. And in saying this we have not overlooked plaintiff’s point that defendant’s freight agent who assented to the order, of Stewart & Stevens to re-divert the car to them should have notified them when he found he could not do so. The only reason why they could have asked notice would be that they might then-have gotten an order from plaintiff. But they knew that defendant did not know they had authority from plaintiff, and it was their duty to have caused knowledge of their authority to have come to defendant and not having done so defendant had a right to treat them as wholly disconnected from the transaction. In considering what effect the request from Stewart & Stevens to defendant’s division freight agent at San Francisco to redivert the car from Oakland to them, should have, it must be remembered that the case rests on an agreed statement of facts which is like a special verdict, and it must contain every essential element, without any omission and without doubt or ambiguity, to support the judgment. [Goben v. Murrell, 190 S. W. 986, following Gage v. Gates, 62 Mo. 412; Car v. Lewis Coal Co., 96 Mo. 149; Hughes v. Moore, 17 Mo. App. 148; Moore v. Henry, 18 Mo. App. 35, 40.] The agreed statement here does not show that the division freight agent at San Francisco had authority to bind defendant to an apparently unauthorized request to divert the shipment from Oakland. If such agent was without authority, then Stewart & Stevens’ request to him was no more than if it had not been made. But if it were conceded that this agent’s authority would be judicially noticed it would not aid plaintiff. For the agreed statement of facts being a special verdict which should show, without doubt or ambiguity, every essential to plaintiff’s case, it must show that Stew [582] art & Stevens were agents of the plaintiff owner with authority to countermand the owner’s order diverting the shipment to another destination and that defendant knew' they were. It does not show such facts and consequently when Stewart & Stevens countermanded plaintiff’s ■ order to divert, they, as we have said, were strangers to defendant and the latter did right in ignoring them. When Stewart & Stevens sold the chickens to Deal, they did not pretend to assert authority to divert the shipment, but communicated with plaintiff who gave the order. The agreed statement of facts merely shows the naked fact that Stewart & Stevens gave the order countermanding the owner’s order. Presumably this was done under the erroneous assumption that they had a right to do it by reason of being original consignees. We recapitulate the points of failure in plaintiff’s case: The freight was originally consigned to Stewart & Stevens, but defendant knew that plaintiff was the shipper and the owner with the exclusive right and authority, by itself or its authorized agent, to divert the shipment to some other destination and consignee. • The agreed statement of facts does not show that defendant knew that Stewart & Stevens were plaintiff’s agents any further than as simple consignees. The agreed statement does show that they were, in fact, plaintiff’s agents with authority to divert, but does not show that defendant had any notice of it. So when plaintiff, as shipper owner, ordered defendant, while the freight was en route, to change destination and deliver to Deal instead of Stewart & Stevens, the latter became strangers to the shipment, wholly without authority over it, so far as defendant knew. We think the judgment should have been for the defendant and it will be reversed and the cause remanded that it may be so entered. All concur.