Helm v. Missouri Pac. R. Co.

• Decision Date: 16 February 1903
• Parties: HELM v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

72 S.W. 148

98 Mo. App. 419

HELM v. MISSOURI PAC. R. CO.

Court of Appeals at Kansas City, Missouri.

February 16, 1903.

JUSTICE OF THE PEACE—ACTION—ADMISSIBILITY OF WRITTEN CONTRACT—SUPERSEDING ORAL CONTRACT—ADMISSIONS OF AGENT— SCOPE OF AUTHORITY — RES GESTÆ — VERDICT—AMOUNT—SUFFICIENCY OF DATA.

1. Rev. St. § 3852, provides that no formal pleadings shall be required in justice's court, but that plaintiff shall file the instrument sued on, or a statement of the account or of the facts constituting the cause of action, and that defendant shall file the instrument, account, or statement of his set-off or counterclaim. Held, in an action against a carrier for delaying the shipment of live stock, that the written contract of shipment was admissible on behalf of the carrier without having been pleaded.

2. A shipper contracted with a carrier orally for a car for his cattle on a certain day. The parties then reduced the contract to writing, in which it was provided that the shipment was

not to be transported within any specified time, nor delivered at any particular hour, nor in season for any particular market, and also that the shipper released any cause of action for damages which might accrue to him by any previous contract. Held, that the written contract superseded the oral one.

3. In an action against a carrier for delay in a shipment of live stock, a witness for plaintiff testified to an admission of the carrier's agent that there was no occasion for delay in furnishing a car, and that he believed the agent was agent for the carrier at Kansas City, "or something"; that for all the cattle witness ever shipped he had paid this agent the freight therefor, and did not know what he was; that he was agent there; and that he (witness) always made checks for freight payable to him. Held, that the showing of the agent's authority was insufficient to warrant the introduction of his admission.

4. An agent's admission made a day after the transaction to which it related had been completed was inadmissible as part of the res gestæ.

5. In an action against a carrier for delay in a shipment of live stock, the court instructed that the measure of damages was the difference between the market price when the cattle arrived at their destination and that when they should have arrived, and the difference between the shrinkage of weight actually sustained, and that which would have taken place had there been no delay. The weight of the cattle was not shown. All that appeared was the amount of shrinkage, which, at the price the cattle brought, would have made the amount of that item of damages $28. Held, that a verdict of $100 was conjectural and excessive.

Appeal from circuit court, Jackson county; Wm. B. Teasdale, Judge.

Action by William T. Helm against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Elijah Robinson and Harris Robinson, for appellant. Llewellyn Jones, for respondent.

SMITH, P. J.

This is an action which was commenced before a justice of the peace. It is alleged in the statement that plaintiff was the owner of 23 head of fat cattle, which he desired to ship to the Kansas City market from Adams' Station (an unimportant station, at which defendant kept no agent), and that accordingly, on January 14, 1901, the defendant, through its agent at Independence, promised to furnish at Adams' Station a car on that day for the shipment of plaintiff's cattle, for which he (plaintiff) promised to pay the usual freight charges; that, relying on said promise, plaintiff drove his cattle to Adams' Station, and there placed them in the defendant's stock pens, and had them ready for shipment, but that defendant failed to furnish the car so promised until the next day (the 15th), by reason of all which plaintiff's cattle were detained at said station, and did not reach Kansas City until 3 o'clock in the afternoon of that day, and 17 hours later than they would have arrived, had defendant kept its promise; and that by reason of defendant's neglect plaintiff was damaged $100, etc. The plaintiff testified that defendant's agent agreed to furnish him a car at Adams' Station in ample time to be loaded and picked up by the freight train going west, that would, if on time, pass that point at 8 o'clock that evening, and reach Kansas City by 10 o'clock next morning. He further testified to the other facts alleged in his statement, and that when he engaged the car he also signed a written contract for the shipment.

The defendant introduced the contract referred to by plaintiff in his testimony. It contained, amongst others, this provision: "First. That the live stock covered by this contract is not to be transported within any specified time, nor delivered at destination at any particular hour, nor in season for any particular market." It does not appear from the abstracts that any exceptions were taken or preserved to the action of the court in overruling plaintiff's objections to the introduction of said contract, but the court later on, by an instruction given sua sponte, withdrew the same from the consideration of the jury. The reasons influencing the action of the court in withdrawing the contract are nowhere stated. It is conceded by the plaintiff that he signed and delivered it in duplicate to the defendant, and since it does not appear that any fraud or imposition was practiced, or that any mistake intervened, it must be taken as the sole evidence of the final agreement between the parties. Wyrick v. Railway, 74 Mo. App., loc. cit. 416. It was not required of defendant, under the statute (section 3852, Rev. St.), to set it up by answer or other pleading, in order to entitle him to introduce it in evidence. In actions before justices of the peace, no formal pleadings are required. There the general issue is presumed to be pleaded, and under it the defendant may show any matter which tends to defeat the plaintiff's action. On a trial anew in the circuit court the rule is the same. Sherman v. Rockwood, 26 Mo. App. 403; Hornsby v. Stevens, 65 Mo. App., loc. cit. 189; Reed v. Snodgrass, 55 Mo. 180. If the defendant relied upon the provisions of the contract already quoted as a defense in bar of the plaintiff's action, he had the right to introduce it in evidence without formally pleading its provisions. We cannot but think that the action of the court in withdrawing the contract from the consideration of the jury was erroneous.

The defendant, it further seems to us, was entitled to the third instruction requested by him, to the effect that if plaintiff entered into a written contract with defendant for the transportation of his cattle, and that by the terms thereof it was agreed that it—defendant—would not transport said cattle within any...