Brown v. Wabash Railway Co.

• Decision Date: 01 March 1926
• Parties: M. D. BROWN ET AL., RESPONDENTS, v. WABASH RAILWAY COMPANY, APPELLANT. [*]
• Court: Kansas Court of Appeals

281 S.W. 64

222 Mo.App. 518

M. D. BROWN ET AL., RESPONDENTS, v. WABASH RAILWAY COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

March 1, 1926

Appeal from the Circuit Court of Callaway County.--Hon. D. H Harris, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Ruby M Hulen for respondent.

McBaine & Clark, Paul M. Peterson and Homer Hall for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.--

This is a suit to recover damages suffered by plaintiffs as a result of alleged negligence of the carrier in the shipment of a car of horses and mules from Browns Station in Boone county, Missouri, to Canton, Mississippi. There was a verdict and judgment in favor of plaintiff in the sum of $ 1000. Defendant appealed the cause to the Supreme Court thinking that there was a constitutional question involved but that court decided to the contrary and transferred the case here. [See Brown v. Wabash Ry. Co., 274 S.W. 388.]

The facts show that the shipment consisted of twenty-seven horses, five mules and one stallion. These animals were delivered to the defendant in good condition at Browns Station on the 8th day of April, 1920, and defendant undertook to transport them to Canton, Miss. When the stock arrived at Centralia, a short distance from Browns Station, the agent there notified the plaintiff Brown of an embargo against the shipping of stock on account of a threatened strike. The agent wanted to return the stock to Browns Station but Brown refused to permit this, so defendant arranged with W. L. Green & Sons, owners of a live stock barn at Centralia, to take care of the stock. In attempting to transfer the animals from defendant's stock pens to this barn, they were permitted to escape and were not corralled until two or three days later. At the time of the escape of the animals, the weather was cold and chilly, snow was on the ground and the roads muddy; some of the animals reached a point as far as seven miles from Centralia and were driven back by the use of an automobile by an employee of Green & Sons. As a result of their running, the horses were very hot and had lather on them, some were lame and stiff and had lacerations on them where they had run into barb wire fencing. Seven or eight days after the animals were delivered to the defendant, Brown went to Centralia and visited the barn of Green & Sons and found a number of the horses and mules had dry foam on them. The foam marks on the stallion showed the outline of a saddle, indicating that it had been ridden. The animals were hungry and there was no water. The feed that was given them was not fit to be fed to live stock.

The evidence does not disclose the length of time the shipment was held in Centralia. However, the animals were reloaded at Centralia for shipment to Canton. At the time they were reloaded, one of the mules had died. When the shipment arrived at Canton it was two mules short, but as to how this loss occurred the record is silent. All of the animals were in bad condition when they arrived at Canton. One of the mules was in such a condition that it could not be taken from the car, and died. A number of the animals died at that place.

Plaintiffs instituted a replevin suit in Canton, Mississippi, against the Illinois Central Railroad Company, the connecting carrier, to obtain possession of the animals which were being held by that company for the freight bill. In that suit plaintiffs sought to recover damages in the sum of $ 1170 for injuries to the stock and to set off these damages to the extent of $ 642.46, the amount of the freight bill, against the bill. The suit was tried before a jury resulting in a verdict and judgment for the defendant. The answer in the case at bar pleads this judgment as res adjudicata as to the damages sought to be recovered on account of the negligence of the Illinois Central Railway.

The petition charges negligence in permitting the animals to escape at Centralia, in allowing one of the animals to be ridden and in the use of an automobile for their recapture, thereby frightening the animals and resulting in making them lame and "stove up" and in the impairment of their health. The failure to provide sufficient and wholesome food and water and that defendant, through its agents, "was so careless and negligent in the handling of said shipment and care of same while in transit from said station of Browns to Canton, Mississippi" etc., that the animals were injured and killed. The allegation of negligence in regard to handling of the shipment from Browns Station to Canton was general. There is some controversy between the parties as to whether plaintiffs are not confined to the specific allegations in reference to the handling of the animals at Centralia. Plaintiffs insist that in addition to the specific negligence aforesaid, the allegations of the petition are sufficient to let in evidence of damages sustained by the animals between Centralia and Canton. Without passing upon the matter, we will accept plaintiff's contention for the purpose of disposing of the case. Unquestionably, the answer proceeded upon the theory that the petition was sufficient in the respects claimed by plaintiffs.

Defendant insists that the court erred in sustaining plaintiff's objection to the introduction in evidence of the transcript of the record of the suit brought by plaintiffs against the Illinois Central at Canton, Mississippi, and refusing to give its instruction No. 9 withdrawing from the jury any damages that were caused by the Illinois Central Railway. It is contended that the judgment in that case is res adjudicata as to any claim for damages sustained on account of the negligence of that company. In discussing this point it is pertinent to examine into the relationship between defendant and the Illinois Central Railway Company in reference to the shipment. By the Federal statute the initial carrier is made liable for any loss, damage or injury to the shipment caused by the connecting carrier but the connecting carrier is made responsible over to the initial carrier for any loss or damage that it is required to pay to the owner of the property caused by the connecting carrier. [34 U.S. Stat. at Large, p. 595, chap. 3591, sec. 7; 41 U.S. Stat. at Large, p. 494, chap. 91, sec. 436.] The Federal statute makes all connecting carriers, employed in the transportation of the shipment, agents of the initial carrier for whose fault the latter is responsible to the owner of the goods. [Keithley et al. v. Lusk et al., 190 Mo.App. 458, 466, 177 S.W. 756, and cases therein cited.] As to the negligence of the connecting carrier, the two are joint tort-feasors.

Plaintiffs elected to sue the connecting carrier for damages caused by it, which they had a perfect right to do. Plaintiffs insist that there was no privity between the two railroad companies and therefore the former judgment is not a bar to that part of the present cause of action seeking to recover damages done by the connecting carrier, the Illinois Central Railway Company. There may not have been privity between the two carriers within the strict technical meaning of that term, and while the general rule is that a judgment is conclusive only as between the parties to an action and their privies, there are exceptions to the rule. In Taylor v. Sartorious, 130 Mo.App. 23, 40, 108 S.W. 1089, the court said:

"The question of who is concluded by a judgment has been obscured by the use of the words 'privity' and 'privies,' which in their precise technical meaning in law, are scarcely determinative always of who is and who is not bound by a judgment. Courts have striven sometimes to give effect to the general doctrine that a judgment is only binding between parties and privies, by extending the signification of the word 'privies' to include relationships not originally embraced in it; whereas the true reason for holding the issue res judicata, does not necessarily depend on privity, but on the policy of law to end litigation by preventing a party who has had one fair trial of a question of fact, from again drawing it into controversy." [See, also, Hill v. Bain, 23 A. 44 (R. I.); Atkinson v. White, 60 Me. 396, 398; Portland Gold Mining Co. v. Stratton's Independence, 158 F. 63, 66.]

We have examined the case of Womach v. St. Joseph, 201 Mo 467, 100 S.W. 443, and like cases cited by plaintiffs, and find the facts in those cases so different from those in the case at bar as to render those cases not in point. The case of Taylor v....