Howell v. St. Louis & Hannibal Railway Co.

• Decision Date: 04 February 1913
• Parties: JOHN W. HOWELL, Administrator, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

153 S.W. 578

171 Mo.App. 92

JOHN W. HOWELL, Administrator, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 4, 1913

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

REVERSED AND REMANDED (with directions).

STATEMENT.--Plaintiff below, a mule buyer, assembled twenty large, fat mules at the farm of a Mr. Elzea about seven miles from Frankford, a station on defendant's railroad. On the night of Thursday, the 19th of October, 1905, Elzea called up the station agent at Frankford and told him that he wanted a stock car, thirty-six feet long, with drop door. The agent said "'All right,' he would have it by Saturday morning;" that it would be there in time, ready to go on the down train going south toward St. Louis. It is fairly to be inferred from the evidence that the station agent knew that the intention was to attach the car to a regular freight train that passes Frankford about 12:20 in the afternoon and usually carries live stock from Frankford to the National Stock Yards at East St. Louis, Illinois. On the following Saturday, Elzea, plaintiff being with him, called up the agent before they started with the mules to know whether the car was there. The agent answered that it was not but would be there and to come on with the mules. Thereupon they started from the farm with these twenty head of mules for Frankford. It appears that directly after this last conversation, which was over the telephone, the agent learned that there was no thirty-six-foot car at the disposal of defendant and he attempted to notify plaintiff of that, but plaintiff and Elzea had already started with the drove and could not be reached. When Elzea and plaintiff arrived at the station with the mules, they found that instead of a thirty-six-foot stock car being there ready for them, there was an ordinary stock car thirty-four feet long and with one of the doors, apparently on the side from which it was to be loaded, broken off. Plaintiff objected to the car because it was too short and because there was no door to it. The station agent told plaintiff that he could fix boards across that would be perfectly safe but plaintiff declined to accept this, saying it could not be done with safety. There is some conflict here between the testimony of plaintiff and that for defendant, plaintiff's testimony, which in the light of the verdict we must accept as true, is that the station agent declined to give him any satisfaction as to when he would have another car there and declined to furnish a thirty-six-foot stock car; according to the testimony of the station agent, he told plaintiff that defendant had no thirty-six-foot stock cars, but if he would wait until the following train, which would come along a few hours later that afternoon, there would be a thirty-four-foot stock car on it in good order which would be at the service of plaintiff. At all events and according to the testimony of plaintiff himself, when he did not find the car that he expected, and that he claimed he had ordered, at the station on Saturday morning, and found that the car which was there would not suit and was not safe to load his mules in plaintiff became angry, drove his mules back to Elzea's farm, kept them there that night and the next morning drove them to Vandalia, a station on the Chicago & Alton Railroad and thence shipped them to the National Stock Yards at East St. Louis.

It is in evidence that if the mules had been shipped over the defendant's road on the morning of the 21st of October Saturday, they would have reached the National Stock Yards sometime Sunday morning in time and condition to be offered on the market there Monday morning, but that going by the route which they did, they arrived at the National Stock Yards on Monday morning, stiffened and gaunt from their trip and not in condition to be put on the market that morning the market closing somewhere about noon of each day. Plaintiff in his petition avers that the value of the mules on the market at East St. Louis on October 24th, the day when they were sold was "about seven dollars per head lower" than the market at such place for such mules on Monday, the 23d, the market on which said mules were intended to be sold. There is no evidence as to any difference in that market for mules on these dates, nor that these mules were sold at a less price than would have been realized for them if they had arrived on time and in ordinarily good condition.

In his petition in the case plaintiff claimed that on the failure of defendant to provide a stock car of the kind ordered, he had driven the mules back from Frankford to the farm, a distance of seven miles, and from the farm to Vandalia, a distance of between eighteen and nineteen miles, and that the shrinkage in value of the mules was by reason of this drive. He also claimed that he had expended a large amount of money for extra feed for the mules and for labor in caring for them to-wit, fifty dollars, and he claimed damages in the sum of $ 430. At the trial of the case plaintiff and his witnesses were permitted, over the objection and exception of defendant, to describe the extra travel from Frankford to the farm and from the farm to Vandalia and to give their opinion as to how much, in their judgment, the mules had been damaged per head "by reason of the drive" from Frankford to Vandalia over the road which was taken and after describing the drive these witnesses placed the damages at from fifteen to twenty dollars a head.

The court at the instance of plaintiff gave two instructions. By the first instruction, which we refer to as set out by respondent in his additional abstract, the court told the jury that if they found from the evidence in the case that on or about the 19th of October, plaintiff made application to defendant through its agent in charge of its station at Frankford, Missouri, to furnish him with a thirty-six-foot car, suitable for the shipment of a carload of large, fat mules from Frankford to the National Stock Yards in Illinois, the car to be placed at the disposal of plaintiff at defendant's station at Frankford not later than Saturday morning, October 21st, so that the mules could be shipped over defendant's railroad to the National Stock Yards, and that plaintiff agreed to deliver the mules at defendant's stock pen at Frankford on that date, and that defendant, through its agent at Frankford, agreed to furnish the car to plaintiff at the time and place and for the purpose for which plaintiff had made the application, if any, and if the jury further found that plaintiff brought a carload of large, fat mules, consisting of twenty head, to defendant's stock pens in Frankford, for shipment on this 21st of October, and that defendant failed to furnish such car and failed to furnish any car suitable for the shipment of the mules or in which the mules could be shipped on that day, but furnished in lieu of such car a car which was unsuitable, unsafe and unfit for the shipment of the mules, if the jury so found, and if the defendant through its agent, after the mules had been placed in defendant's stock pens at Frankford, declined to give plaintiff any assurance that a suitable car would be furnished him at any time for the shipment of the mules, and if the jury found and believed that by reason of the failure of defendant to furnish plaintiff with such suitable car, and by reason of defendant's failure, if any, to give plaintiff any assurance that such car would be furnished him at any time for the shipment of the mules, plaintiff was compelled, in order to care for the mules and properly ship them to the National Stock Yards, to drive them back to the farm and thence to Vandalia, for shipment to the National Stock Yards, Illinois, and if the jury further found that Vandalia was the most practicable and convenient point to which the mules could be driven for shipment to the National Stock Yards, and if the jury believed and found that in driving the mules from Frankford to the farm mentioned and thence to Vandalia, plaintiff exercised that degree of care for the mules that a careful and prudent person, experienced in the handling of such stock, would have exercised under the same or similar conditions and circumstances, and that by reason of and as the result of the drive from Frankford to Vandalia the mules were made sore, jaded and gaunt and were injured and damaged thereby, the verdict should be for plaintiff, provided the jury further found that the station agent at Frankford was, at the time of the alleged contract, the agent in charge of defendant's freight shipping business at that point, and that as such station agent he transacted all of defendant's business at that point in the shipment of live stock from that point and in obtaining cars for shippers of live stock in carload lots, and that the making of the alleged contract with plaintiff was within the apparent scope of his authority as such station agent.

The second instruction told the jury that if they found for plaintiff, in assessing damages they should take into consideration the injuries and damages to the mules, if any, by reason of being made sore, jaded and gaunt, if so the jury found they were, and which were the direct results of driving them from Frankford to the farm from which they had been brought and thence to Vandalia, and the consequent depreciation, if any, in the market value of the mules, and the jury should assess his damages at such sum as will compensate him for such depreciation, if any, in the market value of the mules at the National Stock Yards, not exceeding the sum of $ 430.

At the close of the testimony for plaintiff, as well as at the close of all the testimony in the case, defendant asked ...