Carlisle v. Keokuk Northern Line Packet Co.

• Decision Date: 30 April 1884
• Citation: 82 Mo. 40
• Parties: CARLISLE et al. v. THE KEOKUK NORTHERN LINE PACKET COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 40

CARLISLE et al.

v.THE KEOKUK NORTHERN LINE PACKET COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Hannibal Court of Common Pleas.--HON. THEODORE BRACE, Judge.

AFFIRMED.

Fagg & Hatch and M. G. Reynolds for appellant.

1. The petition does not state facts sufficient to constitute a cause of action. Waldhier v. RailroadCo., 71 Mo. 514. 2. The court erred in giving instruction number four, in behalf of plaintiffs, because it made defendant liable, even though guilty of no negligence, in the origin of the fire, or its efforts to extinguish it. 3. The court erred in giving instruction number five, in behalf of plaintiffs, as to the measure of damages, in peremptorily directing the jury, if they found for plaintiffs, to find interest on the amount at six per centum per annum. Marshall v. Schricker, 63 Mo. 308; Kenney v. Railroad Co., 63 Mo. 99; Atkinson v. Railroad Co., 63 Mo. 367; Myer v. Railroad Co., 64 Mo. 542; DeSteiger v. Railroad Co., 73 Mo. 33; Sparr v. Wellman, 11 Mo. 230; 3 Parsons on Contracts, (6 Ed.) 105; Atchison v. Steamboat Dr. Franklin, 14 Mo. 63; Dozier v. Jarman, 30 Mo. 216. The court erred in refusing defendants instruction No. 4, because it properly declared the law.

Anderson & Boulware for respondents.

1. The petition is sufficient. Schneider v. Railroad Co., 75 Mo. 295. It is unlike that in Waldhier v. Railroad Co., 71 Mo. 514. 2. Plaintiff's instruction No. 4, was proper. 3. Plaintiffs' instruction No. 5 is correct. It is well settled that in an action against a common carrier for failure to deliver goods according to contract, or for injuries to the goods during the transportation, resulting from the negligence of the carrier, interest is properly part of the damage. Dunn v. Railroad, 68 Mo. 278; Gray v. Railroad Co., 64 Mo. 47 and cases cited. 4. Defendant's instruction No. 2 was properly refused.

EWING, C.

This suit was on a contract for the shipment of hogs for hire, and after necessary preliminary averments the petition proceeds: “And plaintiffs say that defendant did not deliver said hogs or any of them to plaintiff at said city of St. Louis, and did not exercise due and proper care in the carriage of the same; on the contrary, plaintiffs say that said steamboat and the machinery, furniture and equipments thereof were imperfect and insufficient; that defendant, its officers, servants and agents carelessly, improperly and negligently managed and conducted said steamboat, Golden Eagle, during her said voyage. And plaintiffs aver and charge that by reason of said insufficiency and imperfection of said steamboat, the machinery, furniture and equipments thereof, and by reason of said careless, improper and negligent conduct of defendant, its officers, servants and agents, the said steamboat, together with the said hogs to plaintiffs belonging, were on the morning of the 31st of May, 1880, destroyed by fire, whereby said hogs and every one of them were wholly lost to plaintiff.”

I. It is insisted by the appellant that the petition does not state facts sufficient to constitute a cause of action. The substance of the charge is that “defendant did not exercise due and proper care in the carriage of the same; on the contrary * * that defendant, its officers, servants and agents carelessly, improperly and negligently managed and conducted said steamboat, Golden Eagle, during her said voyage. And the plaintiffs aver and charge, that by reason of said * * careless, improper and negligent conduct of defendant, its officers, servants and agents * * said hogs * * were * * destroyed by fire * * and wholly lost to plaintiff,” etc. A very different statement of a cause of action to that in Wildhier v. Railroad Co., 71 Mo. 514. In that case the petition is really unintelligible. It does not clearly show what the pleader was intending to allege. Here, while the true cause of action is somewhat obscured by unnecessary words and charges, yet when stripped of this surplusage, the main charge of the loss and damage by the carelessness and negligence of the defendant and its agents and servants remains. It is sufficient, we think, to notify the defendant what it must meet, while the...