Boyd v. St. Louis Express Co.

• Decision Date: 07 April 1919
• Docket Number: No. 13071.,13071.
• Parties: BOYD v. ST. LOUIS EXPRESS CO.
• Court: Missouri Court of Appeals

211 S.W. 702

BOYD v. ST. LOUIS EXPRESS CO.

No. 13071.

Kansas City Court of Appeals. Missouri.

April 7, 1919.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by A. O. Boyd against the St. Louis Express Company. From judgment for plaintiff, defendant appeals. Affirmed.

N. T. Gentry and McBaine & Clark, all of Columbia, for appellant.

Harris & Price and M. R. Conley, all of Columbia, for respondent.

ELLISON, P. J.

Plaintiff desired to ship a very large male show hog weighing something more than 1,000 pounds from the fair grounds at or near St. Louis, Mo., to Columbia, Mo. He engaged the defendant company to carry the animal from the fair grounds to the shipping station at St. Louis, a distance of perhaps nine miles, from which place it was to be taken to Columbia by the Wells Fargo Express Company. The day was hot and sultry, but the hog was in good condition when delivered, and was properly crated for the shipment of a single animal on a wagon. But he died in defendant's charge when about halfway from the fair grounds to the St. Louis station, and, of course, defendant never delivered him. This action at common law was brought, and there was a judgment for plaintiff for $1,250 in the trial court.

We will consider the case as the parties tried it in the circuit court. There was evidence tending to show the necessity for great care and watchfulness in shipping a hog as fat and heavy as this one was. So there was evidence tending to show that the hog, while on the way, began to give signs of needing attention. He squealed, tore out a part of the crate, and began to froth at the mouth for a considerable distance from the place where the driver found that he was dead. The crate was broken out in front and side, and the hog halfway out of it. There was evidence which tended to show that, considering the size of the wagon and that it was loaded with a sheep and two other hogs, the defendant was guilty of negligence. There was also evidence, by reasonable inference and otherwise, tending to show that the driver was guilty of negligence in not giving the hog attention when he saw the condition he was getting in.

No negligence was alleged in plaintiff's petition, and on that account defendant insists that a cause of action was not stated. We think that a cause of action at common law may be stated against a carrier without an allegation of negligence; for negligence is not necessary to make out liability. Davis v. Railroad, 89 Mo. 340, 1 S. W. 327; McFadden v. Railroad, 92 Mo. 343, 347, 4 S. W. 689, 1 Am. St. Rep. 721. The carrier is an insurer, and though the freight is lost in transit without his fault, as, for instance, by an unavoidable fire, he must pay for it. Stiles v. Railroad, 129 Ky. 175, 179, 110 S. W. 820, 18 L. R. A. (N. S.) 86, 130 Am. St. Rep. 429. A part of his obligation is that, in consideration of the freight charges, he assumes (with exceptions noted below) all risk of loss; the charge for transporting is the premium for the risk. There are but three excuses allowed the carrier. One is that the inherent nature of inanimate freight, or the evil propensities of live freight, caused its loss; the second is that the loss was caused by the act of the public enemy; and the third, by the act of God. Kolkmeyer v. Railroad, 192 Mo. App. 188, 195, 182 S. W. 794; Stiles v. Railroad, 129 Ky. 175, 178, 110 S. W. 820, 18 L. R....