Bowles v. Quincy, Q. & K. C. R. Co.

• Decision Date: 19 July 1912
• Citation: 149 S.W. 1041
• Parties: BOWLES v. QUINCY, Q. & K. C. R. CO.
• Court: Missouri Court of Appeals

149 S.W. 1041

BOWLES v. QUINCY, Q. & K. C. R. CO.

St. Louis Court of Appeals. Missouri.

July 19, 1912.

PLEADING (§ 395)—PROOF—VARIANCE.

Where no amendment was ordered to conform the petition to the proof, the submission of an action against a railroad company on evidence of negligence not declared upon, and which was received over defendant's objection, is ground for reversal.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by James J. Bowles against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

O. D. Jones, of Edina,,and J. G. Trimble, of Kansas City, for appellant. G. R. Balthrope and James C. Dorian, both of Edina, and 3. H. McKinney, for respondent.

NORTONI, J.

This is a suit for damages' accrued to plaintiff through the alleged negligence of defendant in transporting a car load of hogs. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff shipped 146 hogs in one car over defendant's railroad from Kansas City to Edina, Mo., on January 3, 1910. It appears that during the transit the hogs were exposed to a blizzard and contracted pneumonia, from the effects of which 122 of them died. Because of this, the present suit was instituted, and plaintiff prevailed at the trial.

The material portion of plaintiff's petition setting forth his grievance and the grounds of recovery therefor is as follows: It is averred that plaintiff delivered the hogs to defendant at Kansas City, Mo., "in a firstclass and healthy condition on or about the 3d day of January, 1910, and that the officials or agents of said defendant company, upon the receipt of said hogs, demanded of and received from the agent of plaintiff, in charge of said hogs, an additional contract of shipment, which is marked `Exhibit B' and filed herewith; that under and by virtue of said contracts of shipment, aforesaid, it became and was the duty of the defendant to immediately ship and transport the said hogs of plaintiff from said city of Kansas City, Mo., to said city of Edina, Mo., but that the defendant, its agents, servants, and employés, in violation of said contract, on which the plaintiff paid the transportation price agreed upon and demanded by the defendant, negligently and carelessly failed to transport and ship said hogs, but detained the same at different points along the route of shipment, and especially at the city of Milan, Mo., where they were detained and unloaded and kept in unhealthy pens for more than 24 hours, and were carelessly and negligently loaded into unhealthy cars both at Kansas City, Mo., and at Milan, Mo.; and that on account of the carelessness of said company in not transporting said hogs in healthy cars, and their unloading the same in unhealthy pens, said hogs contracted a deadly and dangerous disease, from which 120 of the same died, which were of the reasonable value of $1,260, and by reason of said hogs being diseased, as aforesaid, through the carelessness and negligence of the defendant, as aforesaid, plaintiff was compelled and did expend large sums of money in feeding and doctoring and taking care of said hogs, to wit, the sum of $300."

From the averments above set forth, it appears that plaintiff asserted, as the grounds of negligence relied upon for a recovery, that defendant detained and unloaded his hogs in unhealthy pens and loaded and shipped them in unhealthy `cars; but there is naught in the record whatever tending to support the charges made. It appears from plaintiff's evidence alone that the car in which the hogs were shipped was a new one never used before; and there is no suggestion that either it or the stock pens complained of were unhealthy in any respect, or infected with disease in any manner. Though there is no averment in the petition that defendant breached its obligation to transport...