Bushnell v. The Wabash Railroad Co.
| Decision Date | 04 June 1906 |
| Citation | 94 S.W. 1001,118 Mo.App. 618 |
| Parties | J. B. BUSHNELL, Respondent, v. THE WABASH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. John P. Butler, Judge.
AFFIRMED.
Judgment affirmed.
Geo. S Grover for appellant.
(1) The plaintiff was not entitled to recover in this action any damages whatever on the shipments of either Alex. Guthridge or Steve Bushnell. R. S. 1899, sec. 540. (2) The undisputed proof here shows that the damages here sued for accrued upon the defendant's connecting line. At common law and under the contracts of shipment, the defendant was not responsible therefor. Coates v. Express, 45 Mo. 238; Nines v. Railroad, 107 Mo. 475; McCann v. Eddy, 133 Mo. 59; Myrick v. Railroad, 107 U.S. 102. (3) There is a failure of proof in this action as to any negligence on the part of defendant. The burden of proof was upon the plaintiff to show this essential fact. For that reason he should have been nonsuited. Sturgeon v. Railroad, 65 Mo. 569; Witling v. Railroad, 101 Mo. 640. (4) The damages here claimed were either waived or liquidated by the express provisions of valid contracts of shipment. Coates v. Express Co., 45 Mo. 238; Nines v. Railroad, 107 Mo. 475; McCann v. Eddy, 133 Mo. 59; Myrick v. Railroad, 107 U.S. 102; Brown v. Railroad, 18 Mo.App. 568; Vaughn v. Railroad, 78 Mo.App. 639; Harvey v. Railroad, 74 Mo. 546; Kellerman v Railroad, 136 Mo.App. 190; Hart v. Railroad, 112 U.S. 341; Cau v. Railroad, 194 U.S. 431; Railroad v. Pearce, 192 U.S. 179. (5) The court gave improper instructions of its own motion. See authorities cited supra; Garisk v. Railroad, 49 Mo. 274; Fink v. Ins. Co., 60 Mo.App. 677; Smith v Shell, 82 Mo. 215; Mensing v. Ins. Co., 36 Mo.App. 602; Maddox v. Ins. Co., 39 Mo.App. 198; McCullough v. Ins. Co., 113 Mo. 606; Ely v. Railroad, 77 Mo. 34. (6) The court refused proper instructions asked by defendant. Authorities cited, supra; Davenick v. Railroad, 57 Mo.App. 556; Cau v. Railway, 194 U.S. 431.
J. A. Collet for respondent.
(1) This suit was properly prosecuted in the name of J. B. Bushnell, the real owner of the stock, and party in interest. R. S. 1899, sec. 540; Summers v. Railway, 79 S.W. 481. (2) Neither the pleadings nor the evidence in this case present the question that these shipments of stock were made over any other than the Wabash railroad, and even it were true that the damages resulted from the negligence of connecting carriers, still, defendant, having contracted to carry the stock to their destination, is responsible to plaintiff for damages resulting to him, either from the negligence of itself or connecting carriers. McCann v. Eddy, 133 Mo. 59; Sash & Door Co. v. Railway, 177 Mo. 641; Nenno v. Railway, 105 Mo.App. 540; Mfg. Co. v. Railway, 101 Mo.App. 442; Grain Co. v. Railway, 176 Mo. 480; Aiken v. Railway, 80 Mo.App. 8; Jones v. Railway, 89 Mo.App. 653; Railroad v. McCann, 174 U.S. 580. (3) The delays proven, unexplained by defendant, constitute sufficient proof of defendant's negligence to authorize a recovery in this case. Sloop v. Railroad, 93 Mo.App. 605; Anderson v. Railway, 93 Mo.App. 677; Botts v. Railroad, 106 Mo.App. 397; Ball v. Railroad, 83 Mo. 574. (4) The contracts of shipment in this case could not relieve defendant from liability for loss occasioned by its negligence. McFadden v. Railway, 92 Mo. 343; Minter v. Railway, 82 Mo.App. 130; Anderson v. Railway, 93 Mo.App. 677; Botts v. Railroad, 106 Mo.App. 397; Ball v. Railroad, 83 Mo. 574; Ward v. Railway, 158 Mo. 226; Witting v. Railway, 101 Mo. 631; Cau v. Railway, 194 U.S. 431; Pope v. Ramsey, 78 Mo.App. 157; Strother v. DeWitt, 98 Mo.App. 293. (5) The notices of these losses having been given to defendant within the time required by the shipping contract, and no objection having been made to the fact that the claims for damages were not verified, defendant not only waived a strict compliance with the contract in that regard, but is also estopped from insisting on more literal and strict compliances therewith after the expiration of the time within which it could have been done. McCullough v. Ins. Co., 113 Mo. 606; Andrus v. Ins. Assn., 168 Mo. 151; Fowble v. Ins. Co., 100 Mo.App. 527; Live Stock Co. v. Railway, 100 Mo.App. 674; Fink v. Ins. Co., 60 Mo.App. 673; Summers v. Railway, 79 S.W. 481; Ward v. Railway, 158 Mo. 226; Dezell v. Fidelity & Casualty Co., 176 Mo. 253. (6) The court committed no error in giving the instruction upon its own motion, nor in refusing instructions. Ball v. Railway, 83 Mo. 574; Anderson v. Railway, 93 Mo.App. 677; Sloop v. Railway, 93 Mo.App. 605; Live Stock Co. v. Railway, 100 Mo.App. 674; Summers v. Railway, 79 S.W. 481; Botts v. Railway, 106 Mo.App. 397; McFadden v. Railway, 92 Mo. 343; Minter v. Railway, 82 Mo.App. 130; Ward v. Railway, 158 Mo. 226.
Action against a common carrier to recover damages resulting from negligent delay in the transportation of live stock to market.
The petition is in two counts. In the first, it is alleged that on April 7, 1904, at 7 o'clock p. m., plaintiff delivered to defendant at Keytesville for shipment to the National Stock Yards at East St. Louis, Illinois, sixty-two head of cattle and ninety-two head of hogs, the property of plaintiff, that the stock was loaded in cars and ready to go forward at the hour mentioned and defendant accepted the shipment and agreed for hire to carry the stock to its destination within a reasonable time; that eleven hours was a reasonable time, but defendant carelessly and negligently delayed the stock in transportation and consumed nineteen and one-half hours from the beginning to the end thereof; that, had due care been observed, the stock would have arrived at the stock yards early in the morning of the following day, in time for the early market, but, as it was, that day's market was closed before its arrival, that the value of such stock declined on the next day's market and plaintiff suffered loss from that cause as well as from shrinkage in weight occasioned by the unusual delay and expense incurred in feeding and caring for the stock during the time plaintiff was compelled to hold it over. The amount of the damage stated was $ 131.72.
In the second count, plaintiff seeks to recover damages that followed a like delay in the shipment of two hundred and thirty-four head of hogs, which defendant received at Keytesville on May 31, 1904, at 7 o'clock p. m. for delivery at the National Stock Yards in East St. Louis. The amount of the damage claimed in this count is $ 97.16.
In the answer, defendant averred that the two shipments were made under the provisions of five written contracts. In the first, the hogs were shipped under a contract signed by plaintiff, twenty-two head of the cattle were forwarded under a contract also signed by plaintiff and the remainder of the cattle under a contract signed by Alex. Guthridge as shipper. In the second shipment, one hundred, seventeen head of the hogs were shipped under a contract signed by plaintiff and the remaining one hundred, seventeen head under one signed by Steve Bushnell, plaintiff's father. These five instruments are identical in form and contain a number of limitations upon defendant's common law liability, all of which are based upon the recited consideration of a reduced rate. Several of them are employed in the answer to support defenses interposed and such will receive consideration in the ensuing discussion. Defendant pleaded and offered proof tending to show compliance with the regulations of the Interstate Commerce Law. Plaintiff made no effort to show that the rates fixed in the contracts were not in fact reduced rates and the case was tried by both parties and the court on the assumption that the contracts were valid and bound the parties to the extent permitted by law. In our treatment of the case, we will take the same position.
Plaintiff's reply was a general denial. At the close of the evidence, defendant requested an instruction in the nature of a demurrer to the evidence, which was refused, the issues were submitted to the jury and a single verdict was returned on both counts in the sum of $ 228.88. Judgment was entered on this verdict and defendant appealed.
Defendant argues, that, as the judgment is indivisible and includes damages sustained under each of five separate shipments, it cannot stand because two of the shipments were made in the names of persons other than plaintiff, that, with respect to the stock forwarded under the Guthridge and Steve Bushnell contracts, defendant sustained no contractual relation to plaintiff, did not know that plaintiff claimed to be the owner of that property, and, as no assignments of these contracts or of the causes of action arising under them were made to plaintiff, he cannot recover either in virtue of his actual ownership of the property or as trustee of an express trust. It is not shown that defendant knew that plaintiff was in fact the owner of the stock shipped in the names of these other persons, but the fact of his ownership at the time of shipment is established by uncontradicted evidence and in the circumstances disclosed entitles him to prosecute the action in his own name without an assignment of the contracts or causes of action dependent upon them. Section 540, Revised Statutes 1899, requires that "every action shall be prosecuted in the name of the real party in interest." Plaintiff alone sustained any damages in consequence of defendant's breach of contract. The nominal shippers had neither title to, nor interest in, the property. The contracts must be held to have been made for the sole benefit of plaintiff as shipper, and it is well settled "that a contract between two parties upon a valid...
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