A. C. L. Haase & Sons Fish Co. v. Merchants' Despatch Transportation Co.

GOODE, J. (after stating the facts). — The instructions requested show both parties tried the case on the theory that plaintiff was counting on the negligent delay of defendant in carrying the fish, whereby they were damaged, and not on any common law liability for delivering the fish in a 'damaged condition. [Hurst v. Railroad, 117 Mo. App. 35, 37.] The causes was submitted on the theory that there must have been careless and unreasonable delay in the transportation of the goods from Liverpool to East St. Louis to lay defendant liable, and damages could not be recovered for losses due to delay or other injurious incidents of the voyage across the Atlantic, caused by contrary winds, heavy seas, or the perils of navigation generally, for which defendant was not to blame. Hence we shall not consider the appeal with reference to a possible common law liability of defendant. It had issued in Liverpool a through bill of lading by which it agreed to transport the fish from that port to East St. Louis, agreeing to carry first to Boston by the ship Sagamore* and from there to East St. Louis by rail. Defendant, therefore, became a common carrier for the entire route and was liable for the negligence of any carrier which transported the property under an arrangement with it. [McCann v. Eddy, 133 Mo. 59.] One point of controversy is over the court’s action in striking out the special defense based on the trustee — 54 — process or garnishment issued by the Boston Munich pal Court, wherein Warren, owner of the steamship, and at the time actually the custodian of the fish, and the American Express Company, the agent of defendant in issuing the bill of lading, were garnished. The court not only struck out this defense and excluded evidence to support it, but refused instructions to the jury on the issue, thus carrying out consistently the theory that the garnishment of Warren and the American Express Company was no excuse for the detention of the fish three weeks or more in Boston. It is to be remembered the gravamen of this action is the negligent delay in transit and damage caused thereby, and nofc conversion of the property by defendant; and the question urged is whether the garnishment of the. owner of the steamship who had the fish in custody, and his refusal to relinquish the property to defendant until the garnishment suit was dismissed, thereby preventing defendant from forwarding the goods promptly to destination, in law excuses defendant’s delay. There is some conflict between the courts regarding whether a common carrier which has goods in its hands and actually in transit, as these were, can be garnished in an action against the owner of the goods, and perhaps the weight of authority is against the right to levy such a garnishment. [2 Hutchinson, Carriers (M. & D. Ed.), sec. 746, orig. sec. 402; 4 Elliott, Railroads (2 Ed.), sec. 1538 and cases cited; Stevenot v. Koch, 28 L. R. A. 600 and note; Baldwin v. Railroad, 51 L. R. A. 640.] The point has not been passed on in this State, though in Landa v. Holck & Co., 129 Mo. 663, it was held a railroad company which had received goods for shipment but had not yet started them in transit, might be garnished in respect of such goods, and this is the general doctrine. The law in Massachusetts is contrary to the weight of authority and there are peculiar statutes on the subject in that State, as will be seen supra. In Adams v. Scott, 104 — 55 — Mass. 164, it was held a common carrier may be summoned in garnishment in an action against the. owner of the goods actually in transit. That decision was given on a construction of the Massachusetts statute first quoted above. A fact much relied on by this plaintiff is that trustee - process in the Boston Municipal Court was sued out, not against plaintiff, but against Murray.. The second Massachusetts statute quoted supra, says a common carrier summoned as trustee and having in its possession goods shipped by or consigned to the defendant in such an action, in the absence-of collusion on its part, will not be liable to the owner or consignor by reason of its failure to transport or deliver the goods until the attachment is dismissed or the carrier discharged as trustee. That statute exonerates a carrier garnished in an action brought against either the shipper of the goods or the consignee from liability to the owner or the consignee for delay occasioned by the garnishment. The shipper in the present case was John Murray and under the statute it looks like garnishment of the carrier of the fish in an action against Murray would, in Massachusetts, be a good excuse for delay in transportation due to the garnishment, in favor of the party summoned as garnishee. The act was passed, according to the answer, in 1895, and perhaps in consequence of the decision given in 1870, in Edwards v. White Line Transit Co., 104 Mass. 159, that garnishment was no defense to the carrier if it was in an action against any person other than the owner of the goods. In said case, the garnishment was in an action against the shipper, just as here, and the carrier having been sued by the owner for delay thus caused, it was held the garnishment was no defense. Plaintiff says the defendant was not in possession of the goods at the time of the garnishment and so alleges in the portion of the answer which was struck out. The answer does not say in so many words, defendant was not in possession at the time of the service of gar — 56 — nisbment, hut says Warren & Company were, and the goods were not delivered to defendant until the latter part of January. Nothing is alleged either in the answer or the petition about Warren & Company being the agent of defendant, or any other fact which would make the custody of Warren & Company the possession of defendant. [Landa v. Holck & Co., 129 Mo. 663, 671.] The only reference in the answer which shows the facts about this matter says it was attached to the petition as an exhibit. This fact did not make it a part of the petition, much less of the answer. [Bowling v. McFarland, 38 Mo. 465; Pomeroy v. Fullerton, 113 Mo. 440.] It follows we are compelled to dispose of an interesting question on a point of pleading. The part of the answer struck out avers possession of the property in another than defendant when trustee process was served; also avers defendant was not a party to the proceeding, and hence states defendant outside the scope of the Massachusetts statute, which purports to protect only carriers who are in possession of the property and those summoned as trustees. We will not determine whether summoning an agent of defendant, if Warren & Company was such, would have given defendant the benefit of the statute. What we hold is that having alleged Warren & Company was in possession of the property at the time trustee process was served, and having omitted to allege any fact to show custody or possession of that garnishee was the possession of defendant, no defense was stated under the Massachusetts statute. Complaint is made because the ■ court refused to charge that before plaintiff could recover it must prove by a preponderance or greater weight of the evidence, any damage done to the goods by leakage was directly caused by some act of negligence on the part of defendant, its agents or servants. But the requested instruction said plaintiff admitted the damage to the mackerel was caused by leakage, and there was no such admission — 57 — either in the pleadings or proof. It is true plaintiff’s secretary testified the brine had run off the mackerel in some of the barrels, but he said the barrels were stove in at the head and in some places holes had been run through the staves. The escape of brine through openings knocked in the casks was not leakage within the meaning of the bill of lading, nor Avas testimony of its escape in that manner equivalent to admitting the damage was due to leakage. For plaintiff the court instructed the jury that if the mackerel were shipped in apparently good order and condition and properly packed, and when delivered to plaintiff by defendant some of the. casks Avere broken open and the brine had escaped, and the mackerel become deteriorated, then the law presumed the negligence of defendant. caused said condition, and this presumption would obtain until defendant showed by the greater Aveight of evidence that its negligence did not bring about the condition, and unless defendant had prOA'ed to the satisfaction of the jury by the greater weight of evidence the condition of the mackerel was not produced by defendant’s negligence, and the jury should find the mackerel were not transported and delivered in the usual time, the verdict must be for plaintiff. Plaintiff counted in its petition on negligent delay of defendant in transporting the fish, and it will be perceived the instruction just epitomized told the jury the law presumed negligence if the mackerel were delivered to defendant in good condition and delivered by defendant to plaintiff in a deteriorated condition. This is not the law. It Avas incumbent on plaintiff to establish its charges of negligence and consequent damage to the mackerel. In support of the. instruction we are cited by plaintiff’s counsel to Kirby v. Express Co., 2 Mo. App. 369. That decision does support it, but it was rendered on the authority of Levering v. Union, etc., Co., 42 Mo. 88, and Ketchum v. Express Co., 52 Mo. 391, and those decisions were expressly overruled — 58 — in Witting v. Railroad, 101 Mo. 631, wherein the court said it must he taken as the established law of this State that when the cause of action stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff; that the party who founds his cause of action on negligence must be prepared to establish the assertion by proof, and the burden of proof is on him from the beginning to the end of the case. This decision was reaffirmed in Stanard Mill. Co. v. Transit Co., 122 Mo. 258, 276. The judgment is reversed and the cause remanded. All concur.