State v. Trimble

Decision Date09 April 1923
Docket NumberNo. 23791.,23791.
Citation298 Mo. 418,250 S.W. 393
PartiesSTATE ex rel. HARTFORD FIRE INS. CO. v. TRIMBLE et al.
CourtMissouri 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.

BAILEY, C.

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:

"This was an unaccompanied shipment in interstate commerce, and this must be kept in mind as having a direct bearing upon the question presented.

"1. The cause of action is upon the carrier's common-law liability; and while the shipment is one of live animals, which forms one of the exceptions to the rule of the carrier's common-law liability as an insurer, yet proof of delivery to the carrier in good condition and of a delivery by the carrier in bad condition made a prima facie case for the plaintiff which cast the burden on the carrier to show that the loss or injury was caused by the animals' own vice or inherent infirmity and without fault on the part of the carrier, in which event the carrier would not be liable."

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:

"Respondent concedes that the instruction held to be erroneous, and for which the judgment was reversed and the cause remanded for a new trial, omits the element of the hogs' condition at the time they were delivered to the carrier, but strenuously insists upon the rule that, `where a series of instructions, taken together, contains a complete exposition of the law and covers every phase of the case, the verdicts obtained thereon will be sustained, even though the instructions when taken separately may be incomplete.' Hughes v. Chicago, etc., R. Co., 127 Mo. 447, 452, 30 S. W. 127, 128.

"There is no doubt about the correctness of the rule, but it does not apply to a case where the defective instruction permits or authorized a verdict for plaintiff. The instruction here told the jury unqualifiedly that it was the duty of the carrier to safely transport the hogs and deliver them in good condition, and before it could be relieved of liability for the death of the hogs the burden was on the carrier to show that the hogs died of disease of the lungs, and, unless defendant had so shown, `your verdict must be for plaintiff.'

"There is nothing in the contention that the case was tried on the theory that the good condition of the hogs when delivered to the carrier was conceded. Consequently both motions should be, and are, overruled. All concur."

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...

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