State v. Trimble
Decision Date | 09 April 1923 |
Docket Number | No. 23791.,23791. |
Citation | 298 Mo. 418,250 S.W. 393 |
Parties | STATE ex rel. HARTFORD FIRE INS. CO. v. TRIMBLE et al. |
Court | Missouri Supreme Court |
Certiorari to Kansas City Court of Appeals.
Action by the Hartford Fire Insurance Company against John Barton Payne, Agent. Judgment for plaintiff was reversed by the Court of Appeals (243 S. W. 357). The State, on the relation of plaintiff, sued out a writ of certiorari against F. H. Trimble and others, Judges of the Kansas City Court of Appeals, and defendant Payne, to quash the record of that court. Writ quashed.
C. G. Myers, of Chicago, Ill., Albert R. James, of Marshall, and Amos Townsend, of Kansas City, for relator.
J. F. Green, of St. Louis, W. E. Meschede, of Marshall, and Frank W. McAllister, of Kansas City, for respondents.
Statement.
It appears from the record that the relator herein instituted in the circuit court of Salina county, Mo., on May 17, 1920, an action against Walker D. Hines, Agent for the United States government for settlement by actions at law of claims arising during federal control of railroads, and against Walker D. Hines, Director General of Railroads for the United States Railroad Administration, while operating the Missouri Pacific Railroad Company. Afterwards, on November 22, 1920, by agreement of parties, the respondent John Barton Payne, Agent, etc., was substituted for said Walker D. Hines, Agent, etc.
The relator, an insurance company, subrogated to, and assignee of, the right of a shipper holding plaintiff's live stock transit policy covering insurance on a shipment of hogs, sued to recover the amount paid by it under said policy for a loss on said shipment during transportation, for which it was alleged the defendant carrier was responsible. The shipment was of 73 hogs, by W. O. Van Arsdell on September 30, 1919, over the Missouri Pacific Railroad, then operated by the United States government from Naptonville, Mo., to National Stockyards, East St. Louis, Ill., consigned to Milton Marshall Dive Stock Commission Company. The relator recovered a judgment before a jury for $700.77. The cause was appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was reversed and remanded. A motion for rehearing was filed in the Court of Appeals, and also a motion to transfer the cause to this court. Both motions were overruled, and a writ of certiorari was sued out to quash the record of the Court of Appeals.
The opinion of the latter, on the merits, and also on motion for rehearing, and to transfer, are printed in full and will be found reported at length under the style of "Hartford Fire Insurance Co. v. Payne," in 243 S. W. at page 357 and following. As a matter of convenience, and to save expense, we hereby adopt the opinion of Pre"" siding Judge Trimble as to the statement of facts and the remainder of the opinion, as far as it may be applicable to the question before us. On page 359 of above volume Presiding Judge Trimble said:
The Court of Appeals reversed and remanded the cause, however (243 S. W. loc. cit. 360), on the ground that error was committed by the trial court in giving to the jury, on behalf of plaintiff, instruction numbered 3, which reads as follows:
"The court instructs the jury that it was the duty of the defendant as a common carrier to safely transport the hogs in controversy and deliver same to the consignee at the point of destination in good condition, and, before the defendant can be relieved of liability for damages for the death of said hogs, the burden of proof is upon him to show by the greater weight of the credible testimony that said hogs died from natural and inherent causes, to wit, disease of the lungs, and, unless the defendant has so shown, your verdict must be for the plaintiff."
The opinion of the Court of Appeals oil motion for rehearing and to transfer cause to this court (243 S. W. loc. cit. 361) reads as follows:
Opinion.I. It is charged in relator's petition fo this writ that the ruling of the Court of Appeals in reversing and remanding said cause, on account of the giving of plaintiff's instruction 3, is in conflict with the following decisions of this court, to wit: Hughes v. C. & A. Ry. Co., 127 Mo. loc. cit. 452, 30 S. W. 127; Wingfield v. Wabash R. R. Co., 257 Mo. loc. cit. 363, 166 S. W. 1037; Tawney v. United Rys. Co., 262 Mo. loc. cit. 609, 172 S. W. 8.
In the Hughes Case, supra, the defendant pleaded contributory negligence as an affirmative defense. It was held that the instructions given in...
To continue reading
Request your trial-
Barr v. Nafziger Baking Co., 29575.
......The matter therefore cannot be reviewed on appeal. Sec. 1061, R.S. 1929; Sullivan v. Railroad Co. (Mo.), 12 S.W. (2d) 740; State ex rel. v. Woods, 234 Mo. 16; Maplegreen v. Trust Co., 237 Mo. 350. . Leahy, Saunders & Walther, Harold F. Hecker and Lyon ...Busey, 186 S.W. 983; Connell v. A.C.L. Haas & Sons Fish Co., 257 S.W. 760, 302 Mo. 48; State ex rel. Hartford Fire Ins. Co. v. Trimble, 250 S.W. 393, 298 Mo. 418; Fife v. Railroad Co., 174 Mo. App. 655; Althage v. Peoples Motor Bus Co., 8 S.W. (2d) 924. (2) The court erred in giving ......
- State ex rel. Becker v. Wellston Sewer Dist., 31656.
-
Warren v. Giudici, 30117.
......589; Christian v. McDonnell, 127 Mo. App. 630; Williamson v. Railroad Co., 139 Mo. App. 481; Wilson v. St. Joseph, 139 Mo. App. 557; State ex rel. v. Trimble, 298 Mo. 418, 250 S.W. 393; Alexander v. Barnes Grocer Co., 7 S.W. (2d) 373. (2) Plaintiff's Instruction P-2 is erroneous in that ......
-
Barr v. Nafziger Baking Co.
...... The matter therefore cannot be reviewed on appeal. Sec. 1061,. R. S. 1929; Sullivan v. Railroad Co. (Mo.), 12. S.W.2d 740; State ex rel. v. Woods, 234 Mo. 16;. Maplegreen v. Trust Co., 237 Mo. 350. . . Leahy,. Saunders & Walther, Harold F. Hecker and ...Busey, . 186 S.W. 983; Connell v. A. C. L. Haas & Sons Fish. Co., 257 S.W. 760, 302 Mo. 48; State ex rel. Hartford Fire Ins. Co. v. Trimble, 250 S.W. 393, 298 Mo. 418; Fife v. Railroad Co., 174 Mo.App. 655;. Althage v. Peoples Motor Bus Co., 8 S.W.2d 924. (2). The court erred in ......