Gratiot Street Warehouse Co. v. Missouri, Kansas & Texas Railway Co.

NORTONI, J. (after stating the facts). — 1. An instruction, peremptorily directing a verdict, was requested by defendant’s counsel and refused. This action of the court is assigned and argued as error, on the theory that the loss in this case was entailed solely by the act of God, unmixed with any neglect of duty on the part of the defendant. Several cases were cited sustaining the well-established doctrine that there is no liability when the loss occurs solely by the act of God, or from causes, such as the operation of the elements, over which the defendant had no control, and could not reasonably be foreseen or anticipated, as probabilities por — 558 — tending calamity, so as to afford the defendant a reasonable opportunity for protecting the property in its charge, and thus acquit itself of responsibility. These cases are Grier v. St. Louis, etc., Ry. Co., 108 Mo. App. 565, 84 S. W. 158; Amer. Brew. Co. v. Talbott, 141 Mo. 647, 42 S. W. 679; Moffat Com. Co. v. Union Pacific Ry. Co., 113 Mo. App. 544, 88 S. W. 117. In 1892, the year the defendant’s yards were built, the water reached a stage of thirty-six feet, and no damage to freight in the yards resulted therefrom. The conditions remaining the same, this fact, of course would lead an ordinarily prudent person to' believe them reasonably secure from inundation by any stage of water less than that attained that year, and although a stage of 41.4 feet was reached in 1844, and 37.1 feet in 1857, of which defendant had notice, it is hardly just to say that an ordinarily prudent person would anticipate a like stage of water in 1903, in ’view of the fact, first, that thirty-six feet was the highest stage since 1857, and second, in view of the further fact that since that date much change and improvement has been wrought with respect to the topography of the country, and for the carriage of waters in the Mississippi and Missouri valleys; for instance such as straightening small streams* draining swamps and lakes, removing the lodgment of driftwood and other causes which naturally impeded the free flow of the water in the early days. We all know this has been done/ looking to the further development of the country for agricultural purposes and for the betterment of the public health. So, were this the whole case and the defendant were otherwise diligent, no doubt it should have been peremptorily acquitted of negligence here, under the influence of the principle requiring one to exercise the proper measure of care, whatever that may be, in the discharge of a duty, to measure and ascertain the degree of care required by the law by what appears in the usual _ourse of human events, and endeavor to be — 559 — within the realm of reasonable anticipation, as under this principle, no one could fairly and justly say this defendant was negligent in not providing protection against less than a thirty-six foot stage of water; that is 33.2 feet, the high-water mark of June 5, when experience had dictated its labors to that end had been abundantly sufficient against thirty-six feet of water theretofore, and that thirty-six feet was the highest stage obtained by the river in recent years, since 1857, a period of forty-six years. This however, is not the whole case as made by the proof, and its discussion is beside the true question at issue. There is substantia] proof of two separate elements of negligence with which the court must reckon. First, it appears as an established fact and uncontroverted in the proof, that the defendant issued its bill of lading for the car of corn in question about one o’clock on June 3, and from its own witness, it is established by the usual course, the billing of the car would have been communicated to its intermediate office by four o’clock that afternoon; that it would be retained there from one to two hours, until proper records were made, and passed on and reach the yard office on the morning of June 4,» and therefore, had defendant’s agents been ordinarily diligent and passed the bill of lading on, as was the usual course, it would actually have been in the hands of the yard men at the time, and several hours prior to the actual physical receipt of the car at 1:25 on the same day. There is no doubt from the record, in fact it is an uncontroverted fact, that the car was not delivered until 1:25, June 4, and while this is true and defendant could not be liable for neglect thereabout, until the car was actually received, some one must have been inattentive about the process of forwarding the billing from the commercial office, for it appears the billing was not received in the yard office until the morning of June 5, whereas, ordinary diligence would have placed it there on the — 560 — morning of June 4, in advance of the car, and in the usual course of handling cars in and transporting them from the yard in an outgoing train, as testified to by the general yardmaster, the car would have gone forward on a train in the course of eight or ten hours after shipping instructions were received from the commercial office, or at least prior to the morning of June 5, or in other words, prior to the delivery of the billing by its intermediate office, to the yard office. So it appears from this that the defendant’s agents were inattentive and negligent with respect to their duty in passing the billing on to the yard office, which negligence operated to hold the car in the yards until June 5, when, in the usual course, it should have been en route to its destination before midnight on June 4. Without comment on the proof pertaining to the alleged order of the superintendent to remove the new empty cars in order to preserve their wheels from rust, and permitting the numerous loaded cars to remain in the yards, and without comment upon the evidence with respect to the employment of only three locomotives in the yard, when ten were available to remove the loaded cars, all of which was contradicted, and either of which we are of opinion is sufficient to send the question, of defendant’s negligence to the jury, there appears by the uncontradicted proof that defendant’s superintendent, under orders from its civil engineer, caused to be cut the west embankment, seeking to preserve the main line intact, and thus inundated the yards at 10:30 by its voluntary act, to such an extent that the labors which would otherwise have probably resulted in removing plaintiff’s car to a place of safety, were compelled to be suspended at 11:00 o’clock on that day and the car of corn was thereby destroyed. Now, it is well-settled law that if the.defendant’s negligence commingled with and operated as a contributive element proximate to the injury, even though such injury is to some and even a paramount injury, — 561 — operated by tbe act of God, tbe defendant will be liable as though its negligence were the entire and sole cause of the loss. In order for the defendant to escape liability under the exemption afforded by the law to the entailments of an act of God, the act of God must be the sole and only cause of the injury and this too, unmixed with the negligence of the defendant, for if the defendant’s negligent act commingled with it in the loss as an active and co-operative element and the loss is proximate thereto, or, in other words, js a reasonable consequence of the negligent act, it is regarded in the law as an act of the carrier rather than as an act of God. The principle is manifest from all of the cases and evidence of its proper application abounds in the books. [Wolf v. Amer. Ex. Co., 48 Mo. 421-425; Davis v. Railroad, 89 Mo. 340; Grier v. Railway, 108 Mo. App. 565; Prince v. St. Louis Cotton Compress Co., 112 Mo. App. 49, 86 S. W. 873; LaMont v. Railway, 9 Heisk. (Tenn.) 58; Moffat Com. Co. v. Railroad, 113 Mo. App. 544.] It seems clear, first, that the negligence of defendant’s agents in not advancing the shipping bill and instructions, operated to detain the car in a place which proved to be of peril for many hours after it should have been en route to its destination, if they had been ordinarily diligent, and, second, that the voluntary act of defendant inundated and destroyed the corn when it might have been removed to a point of safety had the embankment not been cut. The learned trial judge very properly referred the issue of defendant’s negligence to the jury. 2. It appears that the freight was not prepaid by the plaintiff and nothing was said between the parties with respect to the matter. No special contract was made with reference to credit, the entire transaction being the plaintiff offered the car of corn for shipment, defendant accepted it, and issued to plaintiff its bill of lading, making no requirement as to freight in advance. — 562 — The plaintiff had frequently shipped cars over the defendant’s road, the freight being paid, impliedly, at the point of destination, which was afterwards done, without any special agreement as to the matter. On this state of facts, the learned counsel insists that no liability attaches against the defendant, for the reason the freight had not been paid in advance. It is abundantly established in the law that while a common carrier must carry for one and all alike and thus serve the entire public impartially, it has the right to demand and refuse to carry until its charges are paid in advance, and it has the same right as any other free agent to extend credit to whom it pleases, but the right of a common carrier as to prepayment of its charges is deemed to have been waived by it if it accepts the goods of the shipper for transportation without exacting such payment in advance, and liability will attach in such case as' though the freight were actually prepaid. This proceeds upon the theory of a usual custom in the world of commerce to that effect and that it is often convenient to the parties to receive the freight and collect the charges upon delivery to the consignee. It is amply fortified and the carrier rendered secure by the fact that it has a lien for its charges in that behalf always, and the general rule is that unless there is some agreement to that effect, the freight is not payable until the goods are delivered. [Railway v. Keith, 3 Ind. App. 57; Ray on Neg. of Imposed Duties of Carriers, sec. 126; 3 Wood on Railroads, sec. 428; 4 Elliott on Railroads, secs. 1558-1569; Railway v. Hollowell, 65 Ind. 188; Barnes v. Marshall, 18 Adolph & Ellis 785; Bastard v. Bastard, 2 Showers 82; Pickford v. Railway, 8 Meeson & Welsby 372.] 3. As stated, the car was shipped by plaintiff, consigned to the plaintiff at Wichita Falls, Texas, shipper’s order, with directions to notify E. G-. Rail, and it appears from the evidence of the plaintiff’s president that — 563 — on the day the bill of lading was issued, June 3, he made a draft on Mr. Rail for $519, the selling price of the corn, less, freight, and with the bill of lading attached, negotiated it through the bank, that in due time the draft was presented to Mr. Rail and he paid the same. The corn not having arrived a few days thereafter, Mr. Rail notified the plaintiff’s president to that effect, who, upon ascertaining it had been destroyed, informed the defendant that this draft had been paid and requested the defendant to reimburse Mr. Rail therefor, thus making a claim for Mr. Rail. The defendant not having-made a reimbursement about July 12, Mr. Rail drew upon the plaintiff for the amount therefor with ex- . change, which draft plaintiff honored. Upon this state of facts the defendant insists the plaintiff cannot maintain this suit, for the reason the corn (which was not entirely destroyed) was the property of Mr. Rail at the time of the loss. Now, it is very true that in a sense, a bill of lading is negotiable, not precisely as a note; but as a symbol of the property covered thereby; it is assignable, and such assignment constitutes in the law, a complete legal delivery of the goods, thereby evidenced to be in the hands of the carrier, as effectually as an actual sale and delivery thereof. [Skilling v. Bollman, 73 Mo. 665; Ober v. Railway, 13 Mo. App. 81; Livestock Com. Co. v. Railway, 87 Mo. App. 330-336; Dymock v. Railroad, 54 Mo. App. 531-538; 4 Elliott on Railroads, 1415, 1428.] And therefore when the loss of the goods occurs after the assignment and the vesting of the title to the goods in the consignee or the assignee of the bill of lading, such consignee or assignee is no doubt a proper party plaintiff in an action to recover for such loss, in keeping with the rule that the action should be prosecuted by the real party in interest. [Ober v. Railway, 13 Mo. App. 81; 4 Elliott on Railroads, sec. 1692; 3 Hutchinson on Carriers, secs. 1304, 1305, 1306, 1307.] However, 'this may be, waiving the question — 564 — whether or not the repayment by plaintiff to Mr. Rail and its thereupon reacquiring the bill of lading, did not reinvest plaintiff with the right of action for the damages as a question wholly immaterial to a proper disposition of the case. It is now well settled in the law of this and many other States, following the early case of Blanchard v. Page, 8 Gray (Mass.) 281, where in a very elaborate discussion on principle, by Chief Justice Shaw, the doctrine was announced that even though the consignor had no property or interest in the goods, he is a proper plaintiff in an action for a breach of the contract on the ground that he had an interest in the contract. The doctrine proceeds upon the contractual privity existing between the original parties Avliich operates a cause of action, after the carrier’s service is performed thereunder, in favor of the carrier and against the consignor for the freight, and for this reason conversely renders the shipper, although not the owner of the goods, a party in interest to the contract. Secondly, it is said it does not lie with the carrier Avho made the contract, to say, upon a breach, that the consignor is not entitled to recover the damages, unless it be shown that the real party in interest- objects, .and in the absence of such a showing, it will be presumed the action is prosecuted with the knowledge and consent, and for the benefit of the owner. This doctrine is abundantly fortified in the laAV, aud is the doctrine of the Supreme Court of this State, as appears by the Missouri cases hereunder cited. [See also 3 Hutchinson on Carriers, secs. 1308, 1309; 4 Elliott on Railroads, sec. 1692; Finn v. Railway, 112 Mass. 524; Southern Ex. Co. v. Craft, 49 Miss. 480; Railway v. Schwartz, 13 Ill. App. 490; Cooper v. Railroad, 27 Wis. 81; Harvey v. Railway, 74 Mo. 538; Atchison v. Railway, 80 Mo. 213; Reynolds v. Railway, 85 Mo. 90; Davis v. Railway, 126 Mo. 69-77, 28 S. W. 965; Hance v. Railroad, 62 Mo. App. 60; 3 Ency. Pl. and Pr., 825-828.] Whatever may be said — 565 — with respect to the infringement by this doctrine on the rule of our code, announced in section 540, Revised Statutes 1899, requiring suits to be instituted in the name of the real party in interest, it is too late now to discuss it. The question was not considered by Justice Shaw in Blanchard v. Page, supra, as the code provision did not obtain in Massachusetts, and it seems that this identical feature of the question has never been considered by the courts of this State. The cases have proceeded, no doubt upon the theory that the whole matter was foreclosed in the law and sufficiently answered by the Supreme Courts of Wisconsin and Mississippi, by reference to the doctrine operated by the rule, constituting the consignor the trustee of an express trust for the benefit of the real party in interest, the same as a factor or other mercantile agent contracting in his own name for the benefit of his principal, and this places the case within ,the exception to section 540, supra, in favor of suits by trustees of an express trust, and at the same time removes it within the influence of the succeeding section, 541,. authorizing suits in the name of such trustees for the benefit of the real party and a recovery of course, by the trustee, would operate a bar to another recovery for the same cause by the party in interest. [Hooper v. Railway, 27 Wis. 81, 90; Southern Ex. Co. v. Craft, 49 Miss. 480, 491; see also Hutchinson on Carriers, secs. 1308, 1309.] The consignor is a proper party plaintiff, whether it was the owner of the goods at the date of the loss or not, and this point will therefore be ruled against the defendant. 4. The bill of lading stipulates, in event of loss, “the amount of loss or damage shall be computed at the value or cost of the (corn) . . .’ at the time and place of shipment.” It does not appear that this stipulation is supported by a reduced rate of freight or other special consideration. There was no direct evidence introduced as to the value or cost of the corn at St. — 566 — Louis at the time of shipment, all of the proof on that question being directed to the market value of the corn at Wichita Falls, Texas, at the time it would have arrived there in the usual course. It amounted to showing the market value of the corn at the point of destination at the time it should have arrived to be 64% cents per bushel, delivered, that is, with the freight added; that the freight was 22% cents per hundredweight, and therefore the corn, with freight included, was of the market value of $645, and without the freight, which amounted to $126, was $519. The verdict.returned by the jury was for the latter amount,' $519. All of the evidence fixing the value of the com at Wichita Falls, Texas, was introduced without objection, and there was no instruction requested by either party nor given by the court on the measure of damages. On this state of the record, the defendant insists the judgment must be reversed and the cause remanded, for the reason there is no evidence as to the value or cost of the corn in St. Louis, the place of shipment, at the date mentioned. Now the general rule is, in the case of such loss, the measure of damages recoverable by the shipper is the market value of the goods at the point of destination, with interest from the time the goods should have been delivered, less the amount of freight charges due for their transportation. [Railroad v. Traube, 59 Mo. 355; Davis v. Railroad, 13 Mo. App. 449; Sturgeon v. Railway, 65 Mo. 569; Lesinsky v. Great Western Dispatch, 13 Mo. App. 576; 5 Am. and Eng. Ency. Law (2 Ed.), 373.] And it was no doubt in conformity with this general rule the learned counsel proceeded in making his proof. Notwithstanding this doctrine, however, the provisions of such contracts limiting the measure of recovery to the value or cost of the goods at the time and place of shipment, have frequently been sustained by this court as valid, when they have been freely and fairly made, even though the loss occurs from the car — 567 — rier’s negligence, and the stipulation is not supported by a reduced rate of freight or other special consideration. It is said that while it is not competent for the carrier to contract for an exemption of liability arising on account of its own negligence, it is competent for it to contract the loss shall be measured by the standard of cost or value at the time and place of shipment. [Caples v. Railway, 17 Mo. App. 14; Rogan v. Railroad, 51 Mo. App. 665; Hance v. Railroad, 56 Mo. App. 483-86; Horner v. Railroad, 70 Mo. App. 285, 294.] And so, too, the Kansas City Court of Appeals has announced the same doctrine in Livestock Com. Co. v. Railway, 100 Mo. App. 674, 689, 75 S. W. 782. See also Railroad v. Langdon, 71 Miss. 321, 326. Whether the doctrine is sound or not in principle, as changing the rule fixed by the law for the admeasurement of damages entailed by the carrier’s negligence, it is said to be supported by the greater weight of authority. [1 Hutchinson on Carriers, sec. 430 and cases cited; 5 Am. and Eng. Ency. Law (2 Ed.), 335 and cases cited.] And it is certainly settled in the jurisprudence of this jurisdiction. In view of the validity of the stipulation mentioned, counsel for defendant argues its peremptory instruction should have been given. This cannot be true, for on any view of the case, plaintiff would be entitled to nominal damages for the breach. [Rogan v. Railroad, 51 Mo. App. 665, 672.] Therefore this instruction was properly refused on this feature of the case and with this instruction out of the way, the question now argued is not even suggested in the record before us. Now there is no doubt that had the evidence been admitted over defendant’s exception or had the court given a misdirection to the jury with respect thereto, or refused to give proper direction thereon, under the authorities cited by the defendant, a reversal of the judgment would result,for then the matter would have been brought directly to the attention of the court and the erroneous ruling — 568 — made thereon stand open for review here. It is insisted, however, that even though no objection was made to the evidence and no instructions were requested or given on the measure of recovery, the general denial in the answer imposed the burden upon the plaintiff to establish the value or cost at St. Louis and this it failed to do. We are persuaded that in the state of the record before us, the question thus presented is not reviewable in this court. It is obvious from the entire record that both parties in the circuit court proceeded on the theory that the proper measure of damages was thé market value at the point of destination; in fact, no controversy was had with respect to the measure of recovery at áll. The evidence went in, and the case was tried upon the theory indicated. The contest was principally upon the question of defendant’s Lability, discussed in the first paragraph of the opinion. The other questions heretofore, discussed were raised on the trial, but not so with this one. Now it is a well-settled principle of appellate practice that for a party to avail himself of error on appeal, it must have occurred in the trial without his express or implied consent, and he is estopped to allege as error that which he has recognized as valid by his voluntary act. In a recent case in our Supreme Court it is asserted that he will not be permitted to change his position on appeal and require formal proof on a question practically admitted in the court below. [Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354-369, 78 S. W. 579.] Otherwise the trial court would constantly be adjudged in error on matters tacitly passed over, as proper or impliedly conceded by the parties on which it had not been called upon to give an opinion, and this the law will not forbear. Authorities are numerous. [Hilz v. Railroad Co., 101 Mo. 36, 13 S. W. 946; Hudson v. Railroad Co., 101 Mo. 13, 14 S. W. 15; Zeliff v. Schuster, 31 Mo. App. 493; Gale v. State Ins. Co., 33 Mo. App. 664; Harrington v. — 569 — Sedalia, 98 Mo. 583, 12 S. W. 342; Gale v. Missouri Car, etc., Co., 177 Mo. App. 427, 76 S. W. 987; North St. Louis, etc., Co. v. Obert, 169 Mo. 507, 69 S. W. 1044; Mirrieless v. Railroad, 163 Mo. 470, 63 S. W. 718; Heman v. Larkin, 108 Mo. App. 392, 83 S. W. 1019; Womach v. City of St. Joseph, 168 Mo. 236, 67 S. W. 588; Phelps v. City of Salisbury, 161 Mo. 1, 61 S. W. 582; Dice v. Hamilton, 178 Mo. 81, 77 S. W. 299; McDonald v. Tittman, 96 Mo. App. 536, 70 S. W. 502; Krup v. Corley, 95 Mo. App. 640, 69 S. W. 609; Ency. Pl. and Pr., 516.] Finding no reversible error in the record, the judgment will be affirmed. It is so ordered. Bland, P. J., and. Goode, J., concur.