Botts v. Wabash R. Co.

• Decision Date: 28 February 1913
• Citation: 154 S.W. 53,248 Mo. 56
• Parties: BOTTS et al. v. WABASH R. CO. et al.
• Court: Missouri Supreme Court

154 S.W. 53

248 Mo. 56

BOTTS et al. v. WABASH R. CO. et al.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

COURTS (§ 231)—APPELLATE COURTS — MISSOURI SUPREME COURT — CONSTITUTIONAL QUESTION.

The appellate jurisdiction of the Courts of Appeal cannot be destroyed by sham objections to the constitutionality of a statute, made in the circuit court, which are not presented or argued after the case has reached the Supreme Court on appeal; and where no real constitutional question is presented to the Supreme Court for review the case will be transferred to the Court of Appeals.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by J. A. Botts and another against the Wabash Railroad Company and the St. Louis & Hannibal Railway Company. Judgment for plaintiffs, and defendant St. Louis & Hannibal Railway Company appeals. Case transferred to the St. Louis Court of Appeals.

Plaintiffs were the joint owners of 83 hogs, which they delivered to the St. Louis & Hannibal Railway at its station in Perry, Ralls county, Mo., on the 21st day of March, 1907, and received from that corporation a shipping contract, whereby it was agreed that the hogs, "together with the party or parties in charge thereof, should be transported to Gilmore, Missouri," that being the terminus of the line of said railway; that the shipment was subject to minimum weights applying on cars of various lengths, as per tariffs and rules in effect on the date of the shipment, and through rate of freight from Perry, Mo., the same being a special rate less than the regular tariff rate; that the live stock should be transported within a reasonable time, and there delivered to the Wabash Railroad Company for further transportation to the consignees at the National Stock Yards in East St. Louis, Ill. The contract further provided that the initial carrier should not be liable for any loss or damage beyond its own line, and while said hogs were in its actual custody. It contained many other stipulations. There was evidence that the day in question was excessively warm for that time of the year; the thermometer ranging from 87 to 93 degrees. The transportation began about 2 or 3 o'clock in the afternoon, and about 4 o'clock in the afternoon the shipment had reached Oakwood, a point on the main line of defendant road between Hannibal and Gilmore, where the stock was watered, and the car containing them was picked up by the regular train, arriving at that point about 5 o'clock, for further transportation to Gilmore. The conductor of the regular train took two persons with him to examine the condition of the stock, and discovered about 12 or 13 of them had died. The car in which they were contained showed that it was wet, and that they had been properly watered. They reached their point of destination through a connecting carrier at East St. Louis about 11 o'clock on March 22, 1907. The consignees testified that they disposed of the dead hogs to a rendering company and the living hogs at the market price, and accounted to plaintiff for the proceeds.

The plaintiffs brought this action in two counts originally against defendant and the Wabash Railroad Company as connecting carrier. At the conclusion of the trial the court required the plaintiffs to elect upon which count they would stand. Plaintiffs accordingly dismissed the first count and submitted their cause to the jury on the second count, which alleged that, in violation of their agreement, and in neglect of their duties as common carriers, the defendants failed to make delivery of said live stock within reasonable time and in as good condition as when received, thereby causing 13 of said hogs to die, to the damage of plaintiffs in the sum of $300, for which judgment was prayed.

The answer of the Wabash Railroad Company was a general denial. The answer...