Gelvin v. Kansas City

• Decision Date: 22 March 1886
• Citation: 21 Mo.App. 273
• Parties: DAVID A. GELVIN ET AL., Respondents, v. KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 273

DAVID A. GELVIN ET AL., Respondents,

v.KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

Mar. 22, 1886.

APPEAL from Holt Circuit Court, HON. H. S. KELLEY, Judge.

Reversed and remanded.

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

HUSTON & PARRISH, for the appellant.

I. The court erred in overruling defendant's demurrer to the evidence. The petition counts alone on a special contract, not on the violation of any duty im posed by law upon defendant as a common carrier. Therefore, the law of common carriers is not applicable. The case is to be tested by the law of contracts and agency applicable to all alike. Collier v. Swinney, 16 Mo. 484. The court cannot judicially take notice of the duties of a station agent on defendant's railroad. McGowan v. Railroad, 61 Mo. 528; Brown v. Railroad, 67 Mo. 122. There was nothing in the evidence tending to prove what the duties of the station agent were--nothing to prove that he actually had the power to make the alleged contract; nothing tending to prove that the defendant held him out to the public as having such authority, and the testimony showed affirmatively to the contrary of these. Grover, etc., S. M. Co. v. Railroad, 70 Mo. 672; Brown v. Railroad, 67 Mo. 122; Wood v. Chicago Ry. Co., 24 N. W. Rep. 46. The plaintiff having sued on a special contract could not recover in any case for breach of duty as common carrier. He might have alleged the special contract, and also that he tendered the stock for shipment, but he only alleges the special contract, and he could not recover on a cause of action different from that declared on. Bullene v. Smith, 73 Mo. 151; Evans v. Railroad, 72 Mo. 212; Bank v. Armstrong, 59, Mo. 72.

II. The court erred in giving plaintiffs' instructions. One of them assumed a promise, which was in issue. So as to the second there was neither allegation nor proof to show that the stock was to be sold in Chicago; nor any limit of the damages to the fall in that market. “The measure of damages to which plaintiff was entitled was the difference between the market price at the destination at the time it would have arrived there, and its value at the same time at the place from which it was to have been carried.” Hutch. on Carriers, sect. 774; Birney v. Wabash Railroad, 20 Mo. App. 471. Another instruction submitted to the jury without explanation whether Leach was, in making the alleged contract “acting within the scope of his apparent authority.” The facts constituting an agency should have been defined. Wiser v. Chesley, 53 Mo. 547.

III. The court erred in refusing instructions asked by defendant. They were pertinent and there was evidence tending to prove the matters alleged.

IV. The court erred in admitting hearsay evidence, as to the market value of the stock. The witnesses were not only incompetent, but uninformed.

V. This case is clearly distinguishable from Pruitt v. Railroad (62 Mo. 527), and Harrison v. Railroad (74 Mo. 364.) In both these cases the defendants were liable under the facts stated, as common carriers, the special contracts were entirely immaterial.

CROSBY, RUSK & CRAIG, for the respondents.

I. The question of the station agent's authority to contract for the furnishing of cars at a specified time was properly submitted to the jury. Pruitt v. Railroad, 62 Mo. 527; Harrison v. Railroad, 74 Mo. 364.

II. The contract was for services within the line of defendant's business of which the agent had charge, it being the first duty of a common carrier to provide sufficient means of conveyance. Hutch. on Carriers, sect. 292.

III. In estimating the damages such consequences, as from the nature and subject matter of the contract may be reasonably thought to have been in the contemplation of the parties, at the time it was entered into, should be taken into account. Field on Damages (2 Ed.) sect. 385. The damages alleged in the petition are the approximate and natural result of the breach alleged, and when construed together the instructions given declared the law as applied to the facts in evidence (Field on Damages (2 Ed.) section 374), and any fancied errors in giving or refusing of instructions, or the admission of testimony, will appear to have been harmless.

PHILIPS, P. J.

This is an action to recover damages consequent upon the failure of the defendant railroad company to furnish cars at a designated time for the shipment of plaintiffs' live stock.

The petition alleges that “on or about the eleventh day of April, 1881, in consideration of the promise then and there made by plaintiffs, that they would drive to the defendant's station, in the town of Maitland, Missouri, and have there on a certain day, to-wit, the fourteenth day of April, 1881, ready for shipment, and to be shipped over defendant's railroad to Chicago, Illinois, cattle sufficient to fill twelve cars, and hogs sufficient to fill four cars, the defendant undertook and agreed to provide, furnish, and have at its said station, in Maitland, on a certain day, to-wit, said fourteenth day of April, 1881, sixteen cars in readiness to receive and transport plaintiffs' said cattle and hogs as aforesaid; that plaintiffs, relying on said undertaking and agreement, drove said cattle and hogs to said station, and on said fourteenth day of April, 1881, had at said station, ready for shipment, and to be shipped over defendant's said railroad to Chicago, Illinois, cattle sufficient to fill twelve cars, and hogs sufficient to fill four cars. Plaintiffs further state the defendant, disregarding its said undertaking and agreement, failed to provide, furnish or have in readiness at its said station on said fourteenth day of April, 1881, any cars in which to receive and transport plaintiffs' cattle and hogs, as aforesaid, and did not furnish or provide such cars, or any cars, in which to receive and transport plaintiffs' cattle and hogs, as aforesaid, until the seventeenth day of April, 1881, by reason of which said failure of de fendant to provide said cars at the time and place agreed upon as aforesaid, plaintiffs' said cattle and hogs were detained at said station, and were not, and could not be shipped therefrom on their way to Chicago, until on or about the said seventeenth day of April, 1881, to plaintiffs' damage,” etc.

This is followed by specifications of the particular losses and damages sustained by reason of defendant's alleged delinquency.

The answer, after tendering what I cannot better designate than a partial general issue, set up as a special defence, that at that period, at its various stations along its line of road, there was an unusual quantity of live stock for shipment over its road, beyond the capacity of its supply of cars, which supply was sufficient for the ordinary demand; and that notwithstanding it obtained cars from other roads it was unable to meet the demands upon it promptly. It alleged that plaintiffs had knowledge of this fact; but there was no direct proof of such knowledge on the part of plaintiffs, or that the agent so notified them when they applied for transportation.

The plaintiffs' evidence tended to show that defendant's station agent at Maitland did make the contract with plaintiffs to have the required number of cars at said station for their use at the time alleged, provided they would then have their stock there ready for shipment. The evidence further showed that plaintiffs did so present their stock for shipment, and that they were delayed several days thereafter on account of defendant's failure to keep its said promise. They also made proof of the damages resulting from this detention.

Defendant's evidence was directed mainly to showing that its said agent had no authority from it to make such promise and agreement to have the cars ready at a particular time, and that he was prohibited therefrom by special directions and instructions from the general freight agent, whose office was at the city of St. Joseph, Missouri; and that it was...