Williams v. St. Louis-San Francisco Railway Co.

• Decision Date: 01 July 1925
• Citation: 274 S.W. 935,217 Mo.App. 662
• Parties: A. F. WILLIAMS, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

274 S.W. 935

217 Mo.App. 662

A. F. WILLIAMS, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Springfield

July 1, 1925

Appeal from the Circuit Court of Texas County.--Hon. W. E. Barton Judge.

AFFIRMED IN PART, REVERSED IN PART, AND WHOLE CAUSE REMANDED.

W. F Evans, of St. Louis, W. J. Orr, of Springfield, Lamar & Lamar, of Houston, and L. T. McGee, of Salem, for appellant.

(1) There was an entire failure of proof of these allegations of the first count of the petition (a) that the plaintiff on October 20, 1922, placed an order for four cars for October 21, 1922; (b) that defendant agreed to furnish four cars for October 21, 1922; (c) that there was a difference between the market price of such cattle on October 22 and November 20, as alleged; (d) October 22, was Sunday and there was no market and the cattle were not sold on November 20, but on November 22, 1922; (e) plaintiff did not keep the cattle ready for shipment as alleged from October 21 until November 20, but drove his cattle to Ellington on November 16; (f) he did not, therefore, have the cattle on pasture an alleged from October 21 to November 20. This proposition is too well settled to call for cases. (2) For the reasons above enumerated the motion for a directed verdict on the first count should have been sustained. (3) Instruction No. 1 given on behalf of the plaintiff was erroneous (a) because it did not require the jury to find that there was an agreement to furnish the cars on the date alleged or at all; (b) it is in direct conflict with instruction A given at the defendant's request--one in effect tells the jury that the notice given on the 20th for a car to be placed on the 21st is a reasonable notice, while the other says it is not; (c) it leaves the jury to determine questions of law; (d) it is not based on the evidence; (e) it ignores undisputed testimony; (f) it furnishes no guide to the jury on the question of liability; (g) it directs a verdict on the facts therein hypothecated, and (h) it is not based on the petition. (4) Instruction No. 2 given at the plaintiff's request is erroneous (a) because it does not furnish the jury any legal guide as to the correct measure of damages; (b) it is not based on the pleadings or the evidence; (c) it directs a verdict on the facts therein hypothecated and allows the jury no discretion or judgment on those facts; (d) it is abstractly and concretely erroneous and prejudicial. (5) Instruction No. 3 given on behalf of the plaintiff is erroneous and prejudicial in that (a) it is not based on the pleadings or the proofs; (b) it directs a verdict for the plaintiff on the facts therein hypothecated; (c) it ignores the undisputed and material testimony in the case; (d) it is not a correct statement of the law and the facts it submits. (6) Instruction No. 4 given at the plaintiff's request is erroneous (a) because it does not furnish the jury any legal guide as to the correct measure of damages, (b) it is not based on the pleadings or the evidence; (c) it directs a verdict on the facts therein hypothecated and allows the jury no discretion or judgment on those facts; (d) it is abstractly and concretely erroneous and prejudicial. (7) The instructions 1, 2, 3 and 4 given on behalf of the plaintiff ignore the allegations of the petition that the defendant agreed to furnish the cars sued for, and the jury was not required by any instruction to find that this allegation was sustained (8) A station agent is without authority to make any special agreements as to furnishing cars. The law fixes the conditions upon which cars must be furnished and prohibits any discrimination. Interstate Commerce Act 1920, sec. 3; Underwood v. Hines, 222 S.W. 1037, and cases cited.

J. D. Wallace, of Alton, for respondent.

The proof showed that there was a decline in the market between October the 23rd, the first market day these cattle could have reached the market if cars had been furnished when ordered, or within a reasonable time, and November 20th, the date they did reach the market. Also see Mr. Orr's admission that, "we did order four cars on October 20th, and that they were never furnished," and that Mr. Williams drove his cattle to Ellington, and shipped them to St. Louis. See also, C. H. Rinehart's testimony that there was a decline between October 24th, and November 20th, from $ 1 to $ 1.25 on steers. Plaintiff did keep the cattle ready for shipment at all times until November 16th, when he was compelled to drive those cattle a long distance to Ellington, Missouri, in order to obtain cars and he did have them on feed and pasture at all times from October 20th, until November 20th, as testified to by Mr. Williams, and most all the other witnesses. Under the second count of plaintiff's petition, the evidence showed that plaintiff contracted to sell those cattle in August to C. O. Wilson of Marshall, Missouri, the cattle not to be received or paid for, until delivered F. O. B. cars at Winona, Missouri, Mr. Wilson was down there, and verbally contracted to buy those cattle in August. And Mr. Williams was compelled to, and did expend the sum of $ 258 for pasture from September 2d, until the 17th of October, when he did ship the cattle. This bunch of cattle was contracted for, at so much per head, and Mr. Williams would have received just as much for those cattle on the first or second day of September as he did receive on the second day of October, the date of last shipment, and the $ 258 expended for pasture and labor in caring for those cattle one and one-half months was a clear loss to him. Instruction number 1, given for plaintiff properly declares the law as section 9925, article 2, Revised Statutes of Missouri, 1919, makes it the duty of all corporations or private companies owning or operating a railroad in this State are required to furnish to shippers of live stock, suitable and convenient stock cars without unreasonable delay; and is is not necessary that the company agree to furnish cars to them, although in this case they did agree to furnish them. See G. M. Davis's evidence in which Mr. Woodall, agent for the Frisco Railway Company, stated "that Mr. Williams could get the cars." A carrier is liable for damages for failure to furnish cars in accordance with a verbal contract. Harrison v. Railway, 74 Mo. 364; Gann v. Railway, 72 Mo.App. 34; 10 C. J., page 72, par. 66; Cronan v. Railway, 149 Mo.App. 384. Instruction numbered 2, given for plaintiff, properly declared the law as this instruction told the jury--they should take into consideration the market price of the cattle on November 20th, the date they arrived at market, and the market price at the time they should have arrived at the National Stock Yards, Illinois, if there had been no failure to furnish cars at the time ordered or within a reasonable time when ordered, and that the jury in estimating plaintiff's damage is entitled to consider the amount of money plaintiff actually expended for feed, pasture and labor in driving said cattle to water during the period of time he was waiting on defendant to furnish cars after a reasonable length of time. 10 Corpus Juris, page 77, par. 76, and page 361, par. 446; Ry. Co. v. Smith, 34 Tex. Civ. App. 571; 10 Corpus Juris, page 313, par. 451, Live Stock, Footnote b; St. Louis Ry. Co. v. Ozier, 86 Ark. 179, 110 S.W. 593; Wilson & Aull v. Mo. P. Ry., 66 Mo.App. 388; Gann v. C. G. & W. Ry., 72 Mo. App 40. Instruction number 3 given on behalf of the plaintiff properly declared the law as this instruction which was supported by the evidence told the jury that if they found that A. F. Williams notified the agent of the defendant that on the second day of September, 1922, that he would have one hundred and thirty head of cattle that he had sold to C. O. Wilson, F. O. B. the defendant's cars at Winona, to be carried by defendant to Marshall, Missouri and if they found that the defendant had failed to furnish the cars within a reasonable time of September 2d, and did not furnish them until October 13, 1922, and during all that period of time the cattle were ready shipment, and that he expended money in feeding, caring for and pasturing the cattle, he is entitled to recover in a sum not exceeding the $ 258. Ry. Co. v. Smith, 34 Tex. Civ. App. 571, 79 S.W. 614; 10 C. J. page 77, par. 76. Instruction number 4, given on behalf of the plaintiff was the proper measure of damages as the evidence showed that those cattle were sold at so much per head, and were to be delivered F. O. B. cars at Winona, Missouri, September 1st, or within a reasonable time of September 1st, the cars were not furnished until October 17th, date of last shipment, and he was compelled to, and did expend the sum of $ 258 in pasture and caring for said cattle. Instruction number A, offered by defendant and refused by the court was properly refused as this instruction requested the jury to find the difference between the market value of the cattle at Winona, Missouri, and the National Stock Yards, Illinois, the same date. Those cattle were intended for shipment to the National Stock Yards, Illinois, and there was no market for said cattle at Winona, Missouri. Wilson & Aull v. Mo. P. Ry., 66 Mo.App. 388; Gann v. C. G. & W. Ry. 72 Mo.App. 40.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

Plaintiff sued into two counts to recover damages alleged to have been caused by the failure to furnish cars. The cause was filed in Shannon county, but went on change of venue to Texas county where trial was had before the court and a jury, resulting in a verdict and judgment on both counts in favor of plaintiff. Failing to get a new trial defendant appealed.

At the last term we handed down an opinion in this cause, but...