Robinson v. Bush

• Decision Date: 06 February 1918
• Parties: C. H. ROBINSON, Respondent, v. B. F. BUSH, Receiver of the ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY CO., a Corporation, Appellant
• Court: Missouri Court of Appeals

200 S.W. 757

199 Mo.App. 184

C. H. ROBINSON, Respondent, v. B. F. BUSH, Receiver of the ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY CO., a Corporation, Appellant

Court of Appeals of Missouri, Springfield

February 6, 1918

Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

James F. Green and J. C. Sheppard for appellant.

A. T Brewster and W. A. Welker for respondent.

BRADLEY J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

Plaintiff brought suit against defendant for damages to an interstate shipment of horses and mares, shipped from East St. Louis, Illinois, to Paragould, Arkansas. Upon trial before the court and a jury, plaintiff recovered judgment for $ 340, and defendant appealed.

The horses were delivered to defendant in East St. Louis about 3.30 p. m., September 21, 1916, and arrived at Paragould Arkansas, at 12:50 a. m., September 23rd, and were unloaded by defendant's agent at 2 a. m. same morning. They were perhaps not loaded on car in East St. Louis until about 5 p. m., and there is no evidence showing just what time they were shipped out of East St. Louis. The distance from East St. Louis, Illinois, to Paragould, Arkansas, is about 254 miles; about thirty-three hours elapsed from the time this shipment was delivered to defendant before it arrived at Paragould. At Illmo, Missouri, about one-hundred and forty-two miles south of East St. Louis, one mare was down and defendant put the other twenty-nine head in a separate car, and made the run from Illmo to Paragould a distance of about one-hundred and twelve miles in eight hours and forty-five minutes. There is no evidence giving the exact time the train pulling these horses arrived at Illmo. The conductor who had charge of the train from Illmo to Paragould said his train was due to leave Illmo at 2:30 p. m., and that he left at 4:50. Twenty minutes of this time was lost in the Illmo yards after this conductor had charge of the train, and the balance of the time from 2:30 to 4:50 he said was probably due to the lateness of the train from East St. Louis. Anyway the horses were in the car between twenty-three and twenty-five hours, between East St. Louis and Illmo, or fully ten hours longer than is usual in making the run from East St. Louis to Illmo. When plaintiff delivered the horses to defendant they were in good condition except one mare which plaintiff describes thus: "She had a little skinned place on her ankle, either her right hind ankle or left hind ankle, and she was bruised on her leg just a very slight bit. It wasn't a serious injury. None of the horses were injured. I went into the pens where the horses were, and examined them carefully before I bought them and after I bought them." When delivered at Paragould these injuries were noted by defendant's agent: "One bay mare, eyes swollen; small skinned place on forehead; left knee swollen. One bay mare, skinned place on forehead; right hind leg swollen; eyes swollen; lost colt; one bay mare, skinned place on forehead; eyes swollen; one brown mare, eye punctured and eye out; one small bay mare, lost colt; skinned place on hip and tail; one iron gray, cut under ankle, right hind foot; one black mare, skinned all over; eyes and head swollen; hole in hip; swollen all over; lost colt." Plaintiff testified to many other injuries than these noted; stating that every horse and mare in the shipment were "just bunged up in different ways."

Defendant makes four separate assignments of error, but the view we take it will not be necessary to consider but two: (1) Alleged error based upon admission in evidence of alleged incompetent evidence; (2) the failure of the court to give a peremptory instruction for defendant; this assignment is based upon the proposition that plaintiff bottomed his cause of action on negligence and not upon the carrier's common-law liability as an insurer; and defendant contends that plaintiff failed to make proof of sufficient negligence to justify the submission of the case to the jury.

On the admission of evidence: W. E. Beacham, a witness for plaintiff over defendant's objection and exception was permitted to testify about what one Jake Harris told him concerning the supposed cause of injury to these horses. Harris was a brakeman and his run was between Illmo and Paragould; and Beacham says that Harris told him at Piggott a station between Illmo and Paragould, that this car of horses was "wrecked." Beacham on being recalled testified over the objection and exception of the defendant: "A. Yes, sir; he told me they had started with the car. Q. What car. A. Why, the car of horses, car of horses shipped to Robinson. Q. What did he tell you about that car? A. They had brought the car back and set it out at Illmo yards. Q. What was the occasion of the conversation? A. I asked him if he had a car of horses billed for Robinson at Paragould, and he said he thought there was a car for him--this was at Piggott, and I had called up the yard office and they said there was no car for us; Mr. Harris said they had started out with this car for Paragould, but had pulled out a drawbar, or something like that, and he thought some of the stock was injured, that one of them was killed; and they had set it out at the Illmo yards. Q. What effect did he say the pulling of the drawbar had upon the stock? A. He said it had injured some of the stock and he thought one of them was killed" On cross-examination: "Q. Did you say Mr. Harris told you he was brakeman on this particular train that had this carload, that took it to Paragould? A. He said they started out of the yards with it. Q. I say did he tell you he was braking on that train? A. He said they started with it, the train he was working on. Q. Where? A. Out of the Illmo yards. Q. They first started out with it from the Illmo yards? A. Yes, sir. Q. Where was it then that the drawhead was pulled? A. He said about the Illmo yards. Q. He didn't say they took it out of there? A. No, sir. Q. He didn't say he was working on that train at the time the drawhead was pulled? A. He said his train had a load. Q. He had one? A. Yes, sir; he had one load going south. Q. Down the Cotton Belt? A. Yes, sir. Q. Cotton Belt run into Paragould? A. Yes, sir. Q. Which road does he work for? A. Iron Mountain, I suppose. Q. Do you know? A. I don't know for sure. Q. You don't know? A. No, sir. Q. Was he working for the Iron Mountain or for the Cotton Belt? A. My understanding was--Q. From what he said? A.--that he was in the employ of the St. Louis, Iron Mountain and Southern Railway Company. Q. Did he tell you that? A. I don't think right at that time he did--he has told me--but I don't think he told me that day. Q. Did Jake Harris say he was there? A. No; I don't know that he said he was right there. Q. Somebody else told him about it? A. He didn't say, he just told me about it when I asked about the car. Q. Didn't say whether he had just heard it or whether he had seen it? A. He didn't say. Q. You don't know whether it was this load or not? A. Yes, sir; it was this load. Q. Did he say it was this load that went to Paragould for Robinson? A. Yes, sir. That was on Friday, on the 22nd, I reckon. The horses were not at Paragould then. Harris said they were at the Illmo yards when he left." It is apparent that Harris may have been telling what someone else told him. It was shown by the conductor of the train which pulled this car from Illmo to Paragould that Harris was not connected with the train in any manner, but was brakeman on a different train; and that nothing happened to the train that transported these horses from Illmo to Paragould; and this conductor says: "I took this carload of freight consigned to Robinson from Illmo to Paragould. There were no drawbars pulled out in any of the cars of my train, or any other train carrying this stock out of Illmo. None of these cars was broken or injured, or had anything the matter with them at all." Plaintiff undertakes to justify the admission of this evidence on the ground that Harris was the agent of defendant, and the admission of the agent in the circumstances would be competent against his principal. But this is upon the theory that such admission was made concerning a fact which the agent observed at the time of the happening thereof, and while engaged in the performance of his duty in connection therewith. The principle is well illustrated in Parr v. Ins. Co., 178 Mo.App. 155, 160, 165 S.W. 1152, where it is said: "The rule against admitting the statements or declarations of an agent, unless made in doing an act within the scope of his authority, is well known. The difficulty is in making an application of the rule. The declarations of an agent, relied upon to bind the principal, rest upon a different footing from admissions offered to bind the person making the admission. Every one has the legal right to make an admission against himself whether true or not, and he has no right to complain of the use of such admission as binding upon him. But he ought not to be held responsible, on this principle, for admissions made against him by an agent, unless those admissions or declarations are made as a part of the work or business he is doing or transacting under authority of his principal. In such case they are not admissible upon the theory that they are admissions made by the principal through his agent, but on the theory that they are a part of the act done by the agent in behalf of his principal and explain or determine the quality of that act and are therefore as binding on the principal as the act itself. In other words, they are admissible because they are a part of what the courts (for want of a better term), call the res gestae,...