Burton v. Wabash Ry. Co.

• Citation: 58 S.W.2d 443,332 Mo. 268
• Decision Date: 03 March 1933
• Docket Number: 30378
• Parties: Marion Burton et al. v. Wabash Railway Company, Appellant
• Court: United States State Supreme Court of Missouri

58 S.W.2d 443

332 Mo. 268

Marion Burton et al. v. Wabash Railway Company, Appellant

No. 30378

Supreme Court of Missouri

March 3, 1933

Appeal from Chariton Circuit Court; Hon. Paul Van Osdol Judge.

Opinion of Kansas City Court of Appeals approved and judgment of trial court reversed.

Homer Hall and Collet & Son for appellant.

(1) The circular of the Interstate Commerce Commission containing the ruling of the Commission with respect to the unloading of live stock in suitable pens and defining the term "suitable pens" was competent evidence, for it was made pursuant to the provisions of the Act to Regulate Commerce and fixed the place where the carrier's liability ended, and the court erred in excluding the same. Railway Co. v. Abilene Cotton Oil Co., 204 U.S. 438; Railroad Co. v. Pitcairn Coal Co., 215 U.S. 481; Railway Co. v. Reid, 222 U.S. 438. (2) The court will take judicial notice of the provisions of the circular of the Interstate Commerce Commission offered in evidence by the defendant, even though it was excluded by the court as evidence in the case. Yarde v. Hines, 209 Mo.App 550, 238 S.W. 152; Taylor v. Western Union Tel. Co., 207 Mo.App. 147, 231 S.W. 78; United States v Wallis, 279 F. 401; State ex rel. v. Public Service Commission, 290 Mo. 401, 235 S.W. 134; Hamm v. Railway Co., 211 Mo.App. 476; State v. Railroad Co., 212 Mo. 676. (3) The plaintiffs based their right to recover on the ground that defendant carelessly and negligently delayed the cattle in transportation and, having alleged negligence, they are required to prove it. There is no evidence in the case proving, or tending to prove, that the defendant was negligent in the transportation of the cattle, and the court erred in refusing to declare and find that the plaintiffs were not entitled to recover. Robinson v. Bush, 200 S.W. 757; McMickle v. Railway Co., 209 S.W. 614; Baker v. Schaff, 211 S.W. 103; Burgher v. Railway Co., 217 S.W. 854; Harrison v. Railroad Co., 209 Mo.App. 530; Neely v. Hines, 237 S.W. 909; Rudy v. Railroad, 278 S.W. 814; Mourer v. Railway Co., 280 S.W. 1050. (4) The declaration of the court in plaintiffs' Instruction 1, that the cattle were not delivered until they were in the actual possession and control of the consignee, or were placed in pens assigned to the consignee, is erroneous, for the reason that the defendant made delivery of the cattle and fully performed its duty as a carrier, when the cattle were unloaded and placed in the unloading pens or chutes at National Stock Yards, where the consignee could have obtained possession of them. Sec. 15, Interstate Commerce Act; Sec. 15, par. 1, Title 49, U.S. Code; Circular No. 1-S, Interstate Commerce Commission, pp. 114, 115; Packers and Stockyards Act, approved August 15, 1921; Secs. 205, 206, Title 7, U.S. Code; General Rules and Regulations of United States Department of Agriculture of November 30, 1921, under the Packers and Stockyards Act 1921. This instruction was also erroneous, for it declared, as a matter of law, that the delay complained of was negligence instead of submitting that as an issue of fact to be established by the evidence. Railroad Co. v. Thompson Mfg. Co., 270 U.S. 416, 70 L.Ed. 659. (5) The instruction in the nature of a demurrer to the evidence asked by defendant and defendant's third instruction ought to have been given, for the reason that plaintiffs wholly failed to prove the negligence alleged and the damages claimed and that the undisputed evidence for plaintiffs and defendant showed that defendant fully performed its duty as a carrier. Cases and statutes cited under paragraphs 3 and 4. (6) The finding and judgment of the court are contrary to and wholly unsupported by the allegation of the petition and the evidence in the case and are based solely upon speculation and guesswork and the court erred in overruling defendant's motion for a new trial. Cases cited under paragraphs 1, 2, 3 and 4; Roscoe v. Street Ry. Co., 202 Mo. 576; Pointer v. Railway Co., 269 Mo. 104, 189 S.W. 805; Grimm v. Globe Ptg. Co., 232 S.W. 676; McGrath v. Transit Co., 197 Mo. 105; Orcutt v. Century Building Co., 201 Mo. 424.

Roy McKittrick for respondents.

The defendant having contracted to deliver the cattle to Ira C. Creson, its duty was to place the cattle in actual physical possession and control of the consignee or in a place where the consignee had acess to them with no one to interfere with, or prevent such control. Carr v. Railroad Co., 284 S.W. 184. It is the duty of a carrier to deliver live stock to the consignee and since delivery cannot be made safely except through inclosed yards, its duty to receive, transport and deliver live stock is not discharged unless the carrier makes such provisions as will enable it to actually deliver live stock to the consignee. Covington Stockyard Co. v. Keith, 139 U.S. 73. The fact that the cattle were unloaded in the unloading chute at five a.m., and were not put into the sale pens of consignee, a distance of less than 400 yards from the chute, until about noon, and a search was made for the cattle, and no information could be obtained concerning them, was sufficient circumstances to show negligence on the part of appellant's agent, and the court properly overruled the demurrer. 15 S.W.2d 886. Plaintiffs' Instruction 1, is based on the evidence, and properly declared that the measure of damages was the difference in the market price at the National Stock Yards, Illinois, when the cattle should have been delivered, and when they were delivered. Williams v. Railroad Co., 274 S.W. 938.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to us from the Kansas City Court of Appeals under Section 6 of the Constitutional Amendment of 1884, the Kansas City Court of Appeals having deemed its opinion herein (reported in 22 S.W.2d 201) to be contrary to the opinion of the Springfield Court of Appeals in the case of Carr v. St. Louis-San Francisco Railway Company (Mo. App.), 284 S.W. 184.

Respondents Burton et al., sued appellant Railway Company in the Circuit Court of Chariton County for damages on account of delay in the transportation of two carloads of cattle from Clifton Hill, Randolph County, Missouri, to the National Stock Yards at East St. Louis, Illinois. Respondents concede that appellant, within a reasonable time, transported the cattle to a dock or landing platform in the National Stock Yards and that there the cattle were promptly unloaded through chutes into receiving or unloading pens. One carload of the stock was transferred in time for the market on the day of arrival from the receiving pens to the sales pens of the consignee, the Creson Commission Company, in the same stock yards. But the other carload was not so transferred until nearly noontime. In the interval the market had declined. The cattle in the first carload were not sold when received by the commission firm on account of the non-arrival of the second carload in the sales pens. The cattle were sold in Chicago five days later. Respondents sued for damages arising out of a fall in prices, extra shrinkage in weight of the cattle and extra feed.

The case was tried before the court, a jury having been waived. There was judgment for respondents in the sum of $ 180.18 on account of the delayed transfer to the sales pens of the second carload. Instructions given and refused disclose that the trial court adopted respondents' theory that appellant did not complete its contract of shipment until the cattle were delivered to the sales pens of the consignee, and therefore that appellant was liable for any delay in the transfer from the unloading pens. The court rejected appellant's theory that no duty devolved upon it in the handling or movement of the cattle after they were transferred from the cars to the unloading pens. The judgment of the trial court was in accord with the decision of the Springfield Court of Appeals in Carr v. Railway Company, supra, which decision was then in the published reports. The Kansas City Court of Appeals by its opinion in the instant case (22 S.W.2d 201) accepted appellant's theory of the time and manner of the termination of the contract of shipment. Hence the conflict and certification of the appeal to this court.

The contract between respondents and appellant was drawn upon the form of the Uniform Live Stock Contract, prescribed by the Interstate Commerce Commission. By it appellant agreed to carry the live stock described in the contract to appellant's "usual place of delivery at said destination, if on its road or its own water line, otherwise to deliver to another carrier on the route to said destination." We find that the Kansas City Court of Appeals in its opinion has made a fair statement subject to some qualifications, of the facts in evidence concerning the method of handling live stock at the stock yards. We therefore adopt substantial parts of the statements as follows:

"The method by which live stock is handled by the National Stock Yards Company, who own and control the stock yards in East St. Louis, is as follows: When the cattle arrive at the yards the train is set at the dock for unloading and a crew of men in the employ of the stock yards company open the doors to the cars and drive the cattle into the unloading pens. These pens, after the cattle are placed therein are locked. On the arrival of a train of live stock the waybills accompanying shipments are posted in a conspicuous place in the receiving office of the stock yards company, showing the arrival of the car, and as soon as the stock is unloaded a note is made of the hour of the unloading upon the waybills. The waybills or notices are thus posted for the purpose of giving the notice they contain to the commission...