Birney v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 08 February 1886
• Citation: 20 Mo.App. 470
• Parties: EBENEZER BIRNEY, Respondent, v. WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

20 Mo.App. 470

EBENEZER BIRNEY, Respondent, v. WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1886

APPEAL from Schuyler Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed and remanded.

The case and facts are sufficiently stated in the opinion of the court.

GEO. S GROVER, for the appellant.

I. The petition is defective. The statute requiring railroad companies to transport mixed live stock in the same car was not pleaded. Walthen v. Warner, 26 Mo. 146. No breach of duty on the part of defendant is averred. Field v. Railroad, 76 Mo. 616; Sess. Acts Mo. 1881, p. 82.

II. Plaintiff was not entitled to demand transportation for his stock without pre-paying the freight charges. The testimony here is, that nothing was said by either party, about paying charges. Angell on Carriers, sect. 134; Hutch. Car., sect 116; Story Bailments, sect. 586.

III. Contingent profits, such as were recovered in this case should never be allowed. There was no proof of the market value at the place of proposed sale. 1 Suth. Dam. 106; 1 Sedg. Meas. Dam. 112; Hutch. Car., sect. 773; Taylor v. McGuire, 12 Mo. 318; Min. & M'f'g Co. v. Clark, 32 Mo. 305; Lewis v. Ins. Co., 61 Mo. 534; Wilson v. Weil, 67 Mo. 399.

E. L. FRENCH, for the respondent.

I. Tender of freight charges was not necessary, unless the company had received the stock and demanded payment of charges. Hutch. Car., sect. 116; Deichmann v. Deichmann, 49 Mo. 107.

II. The measure of damage or loss, in this case, is the difference between the market value at the place of destination, at the time the stock would have arrived there, if it had been received and shipped by defendant, and their market value, at the same time, at the point of shipment. Wood's Mayne on Damages, sect. 379; Hutch. Car., 769, 770, 774; Atkisson v. Steamboat, Castle Garden, 28 Mo. 124. The estimate of plaintiff was based on this difference, and should be received as true and correct, since nothing appears to the contrary. There was no objection made at the trial to any of the testimony, and as it tends to establish the amount of loss, the verdict should not be disturbed.

ELLISON J.

This action was commenced before a justice of the peace in Schuyler county, Missouri. The cause of action was as follows:

" Plaintiff states that on the seventeenth day of March, 1883, he ordered from the defendant, through its station agent at Lancaster station, one stock car for the purpose of transportation, the live stock to be furnished at defendant's said station on the twentieth day of March, 1883. That said car being furnished at the time and place as agreed, plaintiff presented his stock, consisting of twenty-three hogs, sixteen cows and ten calves, at the station aforesaid, for the purpose of having the same shipped from said town of Lancaster to Alexandria, Missouri, and that said agent denied plaintiff the privilege of putting said stock in the car which plaintiff had ordered as aforesaid, and refused to ship said car load of live stock, although requested so to do by the plaintiff, who had agreed to pay the regular ordinary price for said car, and was ready and willing to pay therefor, at the time and place aforesaid. Plaintiff

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