Bockserman v. St. Louis & Hannibal Railway Co.

NORTON!, J. This is a suit for damages accrued to plaintiff through the alleged negligence of defendant in transporting a shipment of goods from Hannibal to Washington, Missouri. On a trial before the court without a jury, plaintiff had judgment, and defendant prosecutes the appeal. Originally, the Wabash Railroad Company, and the Missouri Pacific Railway Company, which completed the transportation, were made defendants., but the suit was dismissed as to the two latter carriers before the trial was had, and proceeded to judgment against defendant, the initial carrier, alone. The evidence tends to prove that plaintiff owned a store in Hannibal and, desiring to remove his goods to Washington, Missouri, packed and loaded them in a ear of defendant at Hannibal. After so doing, defendant issued a bill of lading to plaintiff and assumed the obligation of transporting the goods over its own line and delivering to the connecting carrier for Washington. There were, in all, thirty-two boxes of goods. Upon the car reaching its destination at Washington, Missouri, several of the boxes were found to have been broken open and the goods removed therefrom. It is said the total value of the goods lost was. $705'.54. Plaintiff prosecutes the suit for the value of the goods so lost. The petition, after enumerating the articles of merchandise, avers, “The items of merchandise above mentioned were . . . lost . . . through the negligence, carelessness and neglect of defendants’ agents, servants and employees.” There is no suggestion in the petition that defendant is pursued on its common law liability of an insurer, but a recovery is sought solely on the ground of negligence. There were no instructions given at the trial, and none requested, save one of a peremptory character by defendant, which sought the direction of a verdict for it, and this instruction was refused. [172] "While there is an abundance of evidence in the record tending to prove the loss of the goods somewhere in transit, there is nothing to suggest negligence on the part of defendant or on the part of its servants. Because of this it is argued the judgment should be reversed, for it is said, if one charges negligence, 'then the law devolves upon him the duty of proving the charge as laid. Under the rule of decision which obtains in this State, the argument is valid and must prevail, for unless there is some proof of negligence on the part of defendant, initial carrier, the presumption goes to the effect that it discharged its full duty in the premises and the loss occurred while the goods were in the custody of the last, or final, carrier — in this case, the Missouri Pacific Railway Company. The rule obtains that when goods are received by an initial carrier in good condition and are shown to have been' delivered by it to a connecting carrier and thereafter found to be damaged or lost, the presumption is that such damage or loss occurred while they were in the possession of the last carrier, and in the absence of evidence affixing the loss or damage because of the fault of the initial carrier, no recovery may be had against it therefor. [See Flynn v. St. Louis and S. F. R. Co., 43 Mo. App. 424, 439; Crouch v. The Louisville etc. Ry. Co., 42 Mo. App. 248; Dean v. Toledo, St. L., etc. R. Co., 148 Mo. App. 428, 128 S. W. 10.] "With the case in this aspect, it devolves, upon plaintiff to show negligence, for he grounds bis cause of action on that score alone in the petition. Under the more recent decisions of our Supreme Court it is said that it must be taken as the established law of this State that, when the cause of action against the carrier stands on the ground of negligence on the part of the carrier, the burden of proof is upon the plaintiff to make good the charge laid.. In other words, that the party who founds his cause of action on the negligence of the carrier with respect to the transportation of [173] freight must he prepared to establish the assertion by proof, and the burden of proof is on him from the beginning to the end of the ease. [See Witting v. St. Louis, etc. Ry. Co., 101 Mo. 631, 640, 14 S. W. 743. See, also, Haase Fish Co. v. Merchants’ Despatch Transp. Co., 143 Mo. App. 42, 58, 122 S. W. 362; Hurst v. St. Louis, etc. R. Co., 117 Mo. App. 25, 36, 37, 94 S. W. 794.] In a more recent case in the Supreme Court it is said, “In a case where a bailee has. neglected to deliver property to the bailor on demand, and no allegation is made by the plaintiff, in an action for a conversion of the property that it has been lost or destroyed by reason of the negligence of defendant, the burden of proof rests on the defendant to account for the property. [Goodfellow’s Ex’rs v. Meegan, 32 Mo. 280; Wiser v. Chesley, 53 Mo. 547.] But if the plaintiff alleges, in his petition, what has become of the property, and avers that it was lost or destroyed through negligence or carelessness on the part of the bailee, the burden of proof rests upon him.”. [See Stanard Milling Co. v. White Line, etc. Transit Co., 122 Mo. 258, 275, 276, 26 S. W. 704.] Further on in the same case and on the same page, it is said, “The party who founds his cause of action upon negligence must be prepared to establish the assertion by proof. ’ ’ There can be no doubt that under our statute plaintiff could enforce liability against the initial carrier for the negligent fault of either of the connecting carriers, the Wabash Railroad Company or the Missouri Pacific Railway Co., as has been frequently determined. [See Blackmer & Post Pipe Co. v. Mobile & O. R. Co., 137 Mo. App. 479, 506, 119 S. W. 13.] It is true, too, that plaintiff may enforce the common law liability of an insurer against the initial carrier alone for his loss, provided the shipment was a through one and the contract of shipment so stipulates, for, in such circumstances, the connecting carriers are regarded as the agents of the initial carrier in consum [174] mating or in fulfilling its contract for a through transportation. [See Lord & Bushnell Co. v. Texas, etc. R. Co., 155 Mo. App. 175, 134 S. W. 111.] But no such questions are presented here. It is not sought, to hold the initial carrier under the statute for the negligent conduct of the connecting carriers, and, if it was, the case is devoid of proof of negligence on the part of either. On the other hand, the common law obligation of the initial carrier under a contract of through shipment is not declared upon in the petition, for it avers a loss through defendant’s negligence and carelessness. This being true, the judgment may not be sustained, for there is no suggestion of negligence in the record. The judgment should he reversed and the cause remanded. ' It is so ordered. Reynolds, P. J., and Caulfield, J., concur.