Ingwerson v. Chicago & Alton Ry. Co.

• Decision Date: 01 July 1907
• Citation: 103 S.W. 1143,205 Mo. 328
• Parties: INGWERSON v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

103 S.W. 1143

205 Mo. 328

INGWERSON v. CHICAGO & ALTON RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 1, 1907

Appeal from Pike Circuit Court. -- Hon. David H. Eby, Judge.

Reversed and remanded.

W. O Gray and Scarritt, Scarritt & Jones for appellant.

(1) The demurrer to plaintiff's evidence should have been sustained. Where an amended petition is filed the original is abandoned. Hawkins v. Massie, 62 Mo. 552; Ross v. Cleveland, 162 Mo. 317; Bobb v. Bobb, 89 Mo 411; Hubbard v. Quisenberry, 32 Mo.App. 472; Roberts v. Ins. Co., 26 Mo.App. 92; United States v. Gentry, 119 F. 70. It is well established that plaintiff cannot sue upon one cause of action and recover upon another. Huston v. Tyler, 140 Mo. 264; Clements v. Yeates, 69 Mo. 623; Ray v Bowles, 83 Mo. 170; Crawford v. Spencer, 36 Mo.App. 78; Mann v. Birchard, 40 Vt. 326. This is not a case of variance as described in section 655, Revised Statutes 1899, but a total failure of proof, as described in section 798, Revised Statutes 1899. Whipple v. B. & L. Assn., 55 Mo.App. 558. (2) In the second place, we submit that defendant's peremptory instruction at the end of all the evidence should have been given for the reason that it appears from the evidence, without question or contradiction, that the delay in the carriage of this shipment was brought about solely by an unusually severe snow and windstorm and cold wave which interrupted the company's telegraph wires and otherwise unavoidably impeded the progress of this and all other trains on defendant's line and also on other lines in the section of the country in question.

Dempsey & McGinnis and Tapley & Fitzgerald for respondent.

(1) Appellant in pleading over waived defects in respondent's petition, if any. State ex rel. v. Bank, 160 Mo. 640; Grymes v. Mill & Lumber Co., 111 Mo.App. 362. (2) If respondent's amended petition was defective it was aided by appellant's answer wherein it is alleged that there was no unusual, unnecessary or unreasonable delay, etc. Allen v. Chouteau, 102 Mo. 309; Price v. P. & F. H. Protective Co., 77 Mo.App. 241; Hughs v. Carson, 90 Mo. 399; Beckman v. Ins. Co., 49 Mo.App. 604; Henry v. Sneed, 99 Mo. 407; Rickets v. Hart, 150 Mo. 64; Fisher v. Central Lead Co., 156 Mo. 485. Moreover, respondent's instruction 3 complained of was proper under issues made by appellant. Leonard v. Railroad, 54 Mo.App. 293, wherein the provision in appellant's alleged contracts fixing twelve hours over schedule time is construed. (3) Actions upon verbal contract or ex delicto against carriers with answer alleging special written contract sanctioned in this State. Hance v. Railroad, 56 Mo.App. 476; Browning v. Railroad, 90 Mo.App. 329; Paddock v. Railroad, 60 Mo.App. 328; Vaughan v. Railroad, 62 Mo.App. 461; Ward v. Railroad, 158 Mo. 226; Kellerman v. Railroad, 136 Mo. 177; Phoenix Powder Mfg. Co. v. Railroad, 196 Mo. 663; Wilson and Aull v. Railroad, 66 Mo.App. 388; Stoop v. Railroad, 117 Mo.App. 204; Ficklin v. Railroad, 117 Mo.App. 211. (4) Respondent could recover on verbal contract. Fountain v. Railroad, 114 Mo.App. 676; Gamm v. Railroad, 72 Mo.App. 34; Harrison v. Railroad, 74 Mo. 364. (5) Respondent sued for and recovered damages on account of appellant's failure to deliver cattle in time for market. There was not a failure of proof. R. S. 1899, sec. 798. If a variance, appellant's remedy was under section 655 of said statutes. Smith v. Fordyce, 190 Mo. 19; Bamson v. Lakeman, 189 Mo. 599. (6) The storms and cold wave were not extraordinary but such as appellant had to provide against. Pinkerton v. Railroad, 117 Mo.App. 288; Gowling v. American Express Co., 102 Mo.App. 375; Davis v. Railroad, 89 Mo. 350.

OPINION

BURGESS, J.

This is an action by plaintiff against defendant, a common carrier, for damages in the sum of $ 840.58, alleged to have been occasioned by delay in the shipment of eighty-four cattle from Bowling Green, Missouri, to Chicago, Illinois, on January 26, 1904. The suit was begun in the circuit court of Pike county, Missouri, May 11, 1904.

In the original petition it was alleged that said cattle were delivered to defendant company on January 26, 1904, and defendant thereupon assumed, and it thereby became defendant's duty as a common carrier, to transfer said cattle to Chicago within a reasonable time; but that defendant "so carelessly and negligently conducted itself in the premises as that it failed and neglected to complete said carriage in a reasonable time," to plaintiff's damage, etc.

Thereafter, during the June, 1904, term of said circuit court, plaintiff abandoned the charge of its original petition and filed in this cause an amended petition wherein it is alleged "that on the twenty-sixth day of January, A. D. 1904, the defendant entered into a contract with the plaintiff under and by virtue of which, in consideration of certain freight charges to be paid, the defendant promised and agreed to carry from the city of Bowling Green, in Pike county, Missouri, by special or fast train, eighty-four cattle, making five car loads, belonging to the plaintiff, to the city of Chicago, in the State of Illinois, and deliver the same in good condition at the Union Stock Yards in the said city of Chicago, on or before seven o'clock of the morning of the twenty-seventh day of January, 1904. . . . But the defendant failed and neglected to begin said carriage at said hour, . . . and in violation of the terms of its said contract the defendant failed and neglected to carry to and deliver said cattle at their said destination on or before said hour of seven in the morning of said twenty-seventh day of January, 1904," to plaintiff's damage, etc.

Thereupon defendant filed its motion to strike out said amended petition, "for the reason that the same is a departure from and states a wholly new and different cause of action from the original petition herein," which motion was overruled by the court, and issue was joined on said amended petition, and the cause was tried upon the issue so made upon the amended petition.

At the beginning of the introduction of testimony in the case counsel for plaintiff stated to the court that they stood solely upon the parol contract alleged in the amended petition, to-wit, a contract for a special and fast train to be started from Bowling Green not later than seven o'clock on January 26 and to reach Chicago not later than seven o'clock on the morning of January 27. At the end of all the evidence the trial court, at the request of the defendant, instructed the jury that plaintiff had wholly failed to prove the verbal contract alleged in the amended petition and defendant thereupon requested the court to peremptorily instruct the jury that they should find for defendant upon the pleadings and the proof, which instruction the court refused to give. Thereupon the court, at the request of plaintiff, instructed the jury that it was defendant's duty to carry said cattle "within a reasonable time and without unnecessary delay" and that if defendant failed to do so they should find for the plaintiff, although no such charge or issue was made in plaintiff's amended petition. The sole issue made by the amended petition, namely a breach of a special contract, was wholly ignored.

At the trial it developed from the testimony that substantially all the delay to the train in question occurred before it reached Bowling Green, and the undisputed proof is that the sole cause of such delay was an unusually severe snowstorm and cold wave which swept over that part of the country the night of January 25, and broke down or grounded the telegraph wires, disabled engines and generally impeded the progress of all trains on this and all other lines of railroad. The evidence shows that from Bowling Green to Chicago the train carrying the plaintiff's cattle made almost schedule time, although considerably handicapped by trouble with the telegraph wires and other difficulties arising from the extreme cold.

In its answer defendant set up a written contract of shipment made with plaintiff for the transportation of these cattle wherein was contained several complete defenses to this suit. By instructions requested defendant again insisted upon said provisions of the shipping contracts which were set up in the answer and introduced in the evidence, but its instructions were overruled and said contracts were ignored by the trial court. Again, in its motion for a new trial, defendant called to the attention of the learned trial court its shipping contracts and its defenses thereunder, and thereby called in question the Federal statute known as the Interstate Commerce Act, and defendant also asserted that by ignoring and nullifying its said contracts of shipment the trial court denied defendant the right to contract, and therefore the equal protection of the law, and also thereby arbitrarily deprived defendant of its property rights in such contracts in violation of both the Federal and State Constitutions.

Under the instructions of the court the jury rendered a verdict against defendant for three hundred and twenty-five dollars, upon which verdict judgment was entered against defendant, and after unsuccessfully moving for a new trial, defendant has appealed to this court from that judgment.

Both constitutional and Federal questions are properly raised in this case, so that this appeal was properly allowed to this court.

In the original petition filed herein plaintiff alleged that defendant owed him the duty to carry the cattle in question from Bowling Green, Missouri, to Chicago "within a reasonable time," and that said common carrier "so carelessly and negligently conducted itself in the premises as that it failed and neglected to complete said carriage in...