Moffatt Commission Co. v. Union Pac. R. Co.

• Decision Date: 05 June 1905
• Citation: 88 S.W. 117,113 Mo. App. 544
• Parties: MOFFATT COMMISSION CO. v. UNION PAC. R. CO.
• Court: Missouri Court of Appeals

88 S.W. 117

113 Mo. App. 544

MOFFATT COMMISSION CO. v. UNION PAC. R. CO.

Kansas City Court of Appeals. Missouri.

June 5, 1905.

1. CARRIERS — INJURY TO GOODS — ACT OF GOD.

While a carrier is responsible for an injury caused by the concurrence of its negligence with an act of God, yet such injury must be a natural and probable consequence of the negligence, and not an unusual and unanticipated consequence, such as an injury to goods caused by an unprecedented and unforeseen flood, to which the carrier's negligent delay in moving the goods subjected them.

2. SAME — BREACH OF CONTRACT.

A carrier is not liable, on the theory of breach of contract, for the destruction, by an unforeseen and unanticipated flood, of goods which it delayed to transport, as such consequence was not in the contemplation of the parties as a probable result of the breach.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by the Moffatt Commission Company against the Union Pacific Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Harkless, Crysler & Histed, for appellant. N. H. Loomis and I. N. Watson, for respondent.

ELLISON, J.

This action is to recover damages by reason of the negligence of defendant in delaying the delivery of two cars of wheat, whereby they were destroyed by a flood of such unprecedented character as to be admitted to be an act of God. The judgment in the trial court was for the defendant.

It appears that two cars of wheat were shipped by different persons over defendant's road to Kansas City, Mo.; that one car was consigned to the Murphy Grain Company, and the other to the Benton Grain Company. Each of these companies had samples of the grain on May 28, 1903, at the board of trade. Plaintiff bought the wheat from these samples on that day, and ordered the grain companies to send the cars to the yards of the Hannibal & St. Joseph Railroad Company. It is a matter of dispute as to what time in the afternoon of the 28th the defendant got the order. It was the custom of the company, and perhaps the expectation of parties dealing with it, to "card" such cars for transfer next day when the order was given before 4 o'clock the preceding afternoon. If the order was given after 4 o'clock, it could not be carried out until the second day. The cars could have been transferred the next day (the 29th) after the order given at the board of trade, but on the next day (the 30th) the great flood of 1903, caused by the overflow of the Missouri and Kansas rivers, suddenly advanced to such unprecedented stage as to make it impossible to move the cars, and it finally reached such height as to practically destroy the grain. Plaintiff does not claim that the cars could have been moved on or after the 30th, but bases its right to recover solely on the charge that defendant was negligent in not transferring them on the 29th.

1. In view of our conclusions as to the law of the case, we will assume that defendant got the order to transfer the cars from its track to the yards of the Hannibal Company in time on the afternoon of the 28th to have made the transfer, in usual course of such business, on the 29th, and that in not doing so it was guilty of negligence. Is the defendant liable on account of such negligence for a loss occasioned by the act of God? It is generally stated to be the rule of law, and it is so held in this state, that where there is negligence concurring with the act of God, and but for such negligence the injury would not have occurred, the person guilty of the negligence will be liable. Davis v. Ry. Co., 89 Mo. 340, 1 S. W. 327; Pruitt v. Ry. Co., 62 Mo. 540; Coleman v. Ry. Co., 36 Mo. App. 476. But the injury must not be too remote. It must be a natural and probable consequence of the negligence. That is to say, the injury must have some natural connection with the negligence, in the probable course of affairs. Holwerson v. Ry., 157 Mo. 231, 57 S. W. 770, 50 L. R. A. 850; Brewing Ass'n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538. If the injury, as a consequence of the negligence, is beyond the usual experience and expectation of mankind, there ought not to be a liability. It would not be improper to ask the question, what are the probable consequences which might happen from the neglect?—not, what are the possible consequences. Stone v. Ry. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794. In Scheffer v. Ry. Co., 105 U. S. 249, 26 L. Ed. 1070, Scheffer was injured through the negligence of the railway company, so that he became insane and committed suicide. It was held that the death in that manner was not the natural and probable consequence of the negligence, and could not reasonably have been foreseen or expected. It might be negligence to delay putting certain goods under shelter in the month of July to protect them from rain or thieves; but if left out, and the unheard-of occurrence (in this climate) of a freeze at that season was to occur and destroy them, would there be any natural connection between the neglect and the loss? And so it has been held in this state there where the...