Kingman St. Louis Implement Co. v. Southern Railway Co.

112 S.W. 721, 133 Mo. App. 317, 1908 Mo. App. LEXIS 335

• Court: Missouri Court of Appeals
• Decided: June 23, 1908
• Status: Published

Opinion

BLAND, P. J.

Defendant contends that the non-suit was proper for the reason the evidence shows the three cars were delivered to plaintiff June sixth, on the Kingman switch, in good condition, and hence were not in defendant’s possession as connecting carrier, on June ninth, when they were submerged, as alleged in the petition. Plaintiff’s evidence tends to show that it had the right to inspect the cars after they were placed on the switch before accepting them. This right does not militate against defendant’s contention, that a delivery on the switch was a sufficient delivery to release it from liability as a common carrier as to said cars, for a delivery subject to the right of inspection placed them under the dominion of plaintiff, and defendant had no right to interfere with that dominion, unless on inspection, plaintiff rejected the cars and notified defendant of its rejection. This was not done, and we hold that the evidence proves all the cars had been delivered to plaintiff by defendant, as connecting carrier, in good condition, and that defendant’s liability as a common carrier ceased before the contents of the cars were damaged by the flood.

Plaintiff’s evidence tends to show that on or about the day the last car was delivered on the Kingman switch, plaintiff communicated to defendant its fear that the cars were in danger from the fast approaching flood, and requested defendant to move them to higher ground; that defendant promised and agreed to move them to a place beyond the reach of the flood and could have done so by the exercise of ordinary diligence, but instead negligently moved them to its Sixth street yards, where they were more exposed to the flood than they would have been had they been left on the Kingman switch. Wolfmeyer’s testimony is that the agreement finally reached was that defendant would haul these cars beyond reach of the water, agreeing to do so Avithout any profit to its company, except that plaintiff should reimburse the Southern Railway Company for any actual expense it might be put to in handling the cars to keep them out of the Avater, this expense, if any, to cover the service and the charge of the railway company for the use of the cars, but it would make no charge for the switching. This evidence shoAvs that defendant took charge of the cars not as a carrier but at bailee, under an agreement to remove them to a place of safety. It did not perform this agreement and, if liable at all, is liable for a breach of the contract to move the cars to higher ground out of reach of’ the flood. But the action is not brought for a breach of defendant’s obligations as a bailee, to protect the cars from the flood. The cause of action pleaded in each count of the petition is to recover damages for a breach of defendant’s duty as a common carrier, to exercise ordinary care to protect plaintiff’s goods from injury by the flood,— an altogether different cause of action from the one which plaintiff’s evidence tended to prove. That a plaintiff cannot sue on one cause of action and recover upon another is too well settled to require the citation of authorities in its support.

The judgment is affirmed.

All concur.