103 S.W. 1143 (Mo. 1907), Ingwerson v. Chicago & Alton Ry. Co.

Citation:103 S.W. 1143, 205 Mo. 328
Opinion Judge:BURGESS, J.
Party Name:INGWERSON v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
Attorney:W. O. Gray and Scarritt, Scarritt & Jones for appellant. Dempsey & McGinnis and Tapley & Fitzgerald for respondent.
Case Date:July 01, 1907
Court:Supreme Court of Missouri
 
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Page 1143

103 S.W. 1143 (Mo. 1907)

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

[205 Mo. 330] 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 [205 Mo. 331] 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...

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