Missouri Pacific Railway Co. v. Wichita Wholesale Grocery Co.

The opinion of the court was delivered by

Three principal questions are presented by the record which include all the various matters discussed in the briefs, and will be all it will be necessary for us to consider.

I. Did the defendant company incur the liability of a common carrier under the facts of this case? The sugar was consigned by the Louisiana Sugar Refining Company at New Orleans to the plaintiff at Wichita, and transported over the Texas & Pacific and St. Louis *529& San FTancisco railroads to. Wichita. It was there placed on the Y, and switched by the Missouri Pacific road over its track to the spur-track at the rear of plaintiff’s warehouse. For these services the defendant ivas paid by the St. Louis & San Francisco Railway Company $2 per car-load. All railway corporations are by statute made common carriers, and required to transport persons and property, as such, for all persons alike. (Gen. Stat. of 1889, ¶1212.) The distance over which freight is hauled, whether in car-load lots or in less quantities, whether in its own cars or those belonging to connecting carriers, can make no difference with the capacity in which the company acts. A railroad transporting a passenger or a car-load of freight one mile, using a switch-engine for motive power, is just as much a common carrier as if the distance were a thousand miles by regular freight- or passenger-train. The fact that compensation for this particular service was paid by the St. Louis & San Francisco Railway Company, while it might render that company also responsible, could not relieve the defendant company from its liability as a carrier. The defendant company -was bound to receive and transport this merchandise as a common carrier, and there is nothing in the facts of the case showing that it did receive it in any other capacity.

II. Did the defendant deliver the sugar to the plaintiff? It is earnestly insisted that when the railroad company placed the cars at the rear of the plaintiff’s warehouse, at the exact place where the plaintiff was accustomed to receive and unload its freight, it had per formed its whole duty, and that from the time it uncoupled its engine from the cars the property was in the possession of the plaintiff, and at its risk. It is shown that the plaintiff was accustomed to break the seals of *530the cars so placed, and remove the freight without the presence of, or special permission from, any employee of the railway company. And it is claimed that under these circumstances the defendant had fully performed all the services it undertook to perform, and was discharged from all further liability. There are authorities which give some support to this contention. (Gregg v. Ill. Cent. Rld. Co., 147 Ill. 550; P. & P. U. Rly. Co. v. Rolling Stock Co., 49 Am. and Eng. Rld. Cases, 81; Independence Mills Co. v. B.C.R. & N. Rly. Co., 34 N. W. Rep. [Iowa] 320.) We think, however, that the facts of this case fail to show a delivery of the sugar to the plaintiff. It is true that the cars were placed in the proper position for unloading, and that the plaintiff was privileged to proceed to take out the sugar as soon as it pleased to do so. But the cars were so placed on Sunday. They were consumed by fire before business hours on Monday morning. The plaintiff was under no obligation to work on Sunday, nor was it bound to receive goods in the night time, especially as it is not shown that it was accustomed to do so. The property remained in the custody of the railroad company until the plaintiff could reasonably be required to receive it. In the case of L. L. & G. Rld. Co. v. Maris, 16 Kas. 333, it was held, that —

“The extraordinary liability of a railroad company as a carrier of goods extends not merely to the termination of the actual transit of the goods to the place of destination, but also until the consignee has a reasonable time thereafter to inspect the goods, and remove them in the usual hours of business and in the ordinary course of business.”

In the opinion in that case the cases holding a different doctrine are referred to, but the court declined to follow them, deeming the better rule to be the one announced, and also that it was best supported by au*531thority. We still adhere to the rule laid down by this court, and think it sustained by the best-considered recent cases. (Scheu v. Benedict, 116 N. Y. 510 ; Pindell v. Railway Co., 34 Mo. App. 675 ; Railroad Co. v. Commercial Bank, 123 U. S. 727.) At the time the sugar was burned it was in the cars in which it was placed by the consignor on the track belonging to the defendant, where it was placed by its employees. The plaintiff had never in any manner taken actual charge of it, nor would it in the usual course of business open its warehouse or be ready to receive it until some hours after it was destroyed. It is not claimed that the defendant did actually deliver the sugar out of the cars to plaintiff. It cannot make a constructive delivery except at a time when the plaintiff might reasonably be required to receive it, and that could only be during business hours of a business day, where there was no custom or agreement to receive at any other time.

Ill. Original bills of lading issued by the Texas & Pacific Railway Company to the consignor, under which it is claimed that not only the receiving company but all connecting carriers were exempted from liability for loss by fire, were offered in evidence by the defendant. The court excluded them. We think they-were inadmissible under the pleadings in this case. The allegations of the petition wTere that the sugar was delivered to the defendant by the St. Louis & San Francisco Railway Company at the point of intersection of the railroads at Wichita, to be transported to the plaintiff at Wichita, and that the defendant failed to deliver. The answer consisted, first, of a general denial, and, second, of an allegation that the plaintiff’s loss, if any, occurred by reason of its own negligence. The contract for shipment from New Orleans to Wichita was *532not mentioned in the pleadings nor drawn in issue in the case. It was, therefore, irrelevant and inadmissible. There is much comment by counsel on the instructions, but we think no other substantial question is presented in the case. Although there would seem to be a very great hardship in imposing on the defendant, which has received but $4 for its services, a liability for a loss of $6,531.25, that liability arises from a rigid but well-established rule of the common law governing the transportation of property by common carriers, which we are not at liberty to abolish or modify.

The judgment is affirmed.