Bragg v. Payne

• Decision Date: 07 November 1921
• Docket Number: No. 14095.,14095.
• Citation: Bragg v. Payne, 235 S.W. 148 (Mo. App. 1921)
• Parties: BRAGG v. PAYNE
• Court: Missouri Court of Appeals

235 S.W. 148

BRAGG v.PAYNE

No. 14095.

Kansas City Court of Appeals. Missouri.

November 7, 1921.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

"Not to be officially published."

Action by Everet Bragg against John Barton Payne, Agent.From a judgment for plaintiff, defendant appeals.Reversed.

Homer Hall, of St. Louis, and Higbee & Mills, of Kirksville, for appellant.

W. F. Frank, of Kirksville, for respondent.

TRIMBLE, P. J.

Plaintiff, owner of 35 head of fat hogs, joined with two others in making up a shipment of 84 head from Kirksville, Mo., to the National Stockyards at East St. Louis, Ill.; plaintiff's hogs being identified by a marking of green paint.Upon being unloaded at the stockyards, nine of plaintiff's hogs were dead.He brought this suit to recover his loss.The jury returned a verdict for the full amount thereof, to wit, $291, and defendant has appealed.

The petition bottomed the case upon the defendant's common-law liability, no negligence being charged, it being merely alleged that the hogs were turned over to the carrier in a sound, healthy condition, but that when the carrier delivered said hogs nine of them were dead.

The answer set up the written contract under which the shipment was made and which is required in cases of interstate shipment such as this was.

The evidence in plaintiff's behalf shows that the hogs left Kirksville about 5 o'clock in the afternoon of December 9, 1918.Eschman one of the three shippers, accompanied the shipment as far as Ferguson, a station in the western edge of St. Louis, arriving there between and 8 o'clock the next morning.Here he inspected the hogs, and apparently they were in good condition.He then went by another train to Vandeventer station in St. Louis, where he took a street car and rode from thence to the stockyards, arriving there about 10 o'clock that morning.

There was no delay in the transportation of the hogs from Kirksville to the stockyards, but after their arrival there on the morning of the 10th of December, 1918, they were not unloaded, owing to the congested condition at the yards, hereinafter shown, until between 4:30 and 5 o'clock in the afternoon.As stated, when they were unloaded, nine of plaintiff's hogs were dead; but none of the other hogs in the shipment were affected in any way, though they were commingled with plaintiff's hogs and had been subjected to the same conditions.

According to the evidence offered in plaintiff's behalf, there was a great congestion of hogs at the stockyards.Eschman says when he got to the yards he"found a large congestion of hogs.There was lots of stock there.They were unloading car after car all that day."He further testified they seemed to be unloading stock all that day as fast as they could; and that as fast as one train was unloaded, another pulled up to the chutes and was unloaded.

Defendant's evidence shows that on the day plaintiff's hogs came to the stockyards, embargoes were in force at other stockyards against receiving hogs, and a vast number of hogs were sent to the National Stockyards, so that it also was finally compelled to issue an embargo against the receipt of other hogs, and on said day the number of hogs received at the stockyards was far beyond the capacity of the yards.In fact, so large was the number that 11,000 hogs which were received found no sale and therefore had to be held over until the next day.It was further shown that the yards were busily engaged all day unloading cars as fast as they could find room at the unloading chutes, each train being received when its turn came, and plaintiff's hogs were therefore not unloaded, and could not have been unloaded, until late in the afternoon.As this congested condition of affairs appears from the evidence on both sides, it is a matter that must be accepted as being conclusively established.

The chief veterinarian of the yards held a post mortem examination on each hog that was dead, as was his duty to do upon every dead animal removed from shipments arriving at the yards.He testified for defendant, and according to his evidence his post mortem examination showed that each of plaintiff's hogs died of pneumonia; that the disease had existed from at least 36 to 48 hours prior to their death; that in the earlier stages of the disease it could exist and yet no signs thereof manifest itself to the...