Chicago & Erie Railroad Company v. Lightfoot

• Decision Date: 03 May 1921
• Citation: 232 S.W. 176,206 Mo.App. 436
• Parties: CHICAGO & ERIE RAILROAD COMPANY, Respondent, v. D. N. LIGHTFOOT and M. D. LIGHTFOOT, Trading as D. N. LIGHTFOOT & SON, Appellants
• Court: Missouri Court of Appeals

232 S.W. 176

206 Mo.App. 436

CHICAGO & ERIE RAILROAD COMPANY, Respondent, v. D. N. LIGHTFOOT and M. D. LIGHTFOOT, Trading as D. N. LIGHTFOOT & SON, Appellants

Court of Appeals of Missouri, Springfield

May 3, 1921

Appeal from Circuit Court of Greene County.--Hon. Orin Patterson Judge.

AFFIRMED.

Judgment affirmed.

Hamlin & Hamlin for appellants.

(1) The demurrer to that part of defendant's first amended answer stating the counterclaim should have been overruled.. Wells-Fargo & Co. v. Cuneo, 241 F. 727; Chicago & N.W. R. R. Co. v. Manufacturing Company, 262 F. 716. This court held in the case of Bush v. Keystone Driller Company, that damages for goods shipped, no matter how meritorious a claim it might be, could not be plead as a counterclaim in this kind of an action. That decision was based on the case of I. C. R. R. Co. v. Hoopes and Others, 233 F. 135, but in so holding, the court overlooked the Wells-Fargo & Company case which was decided on April 9, 1917. In that case the court held that the I. C C. Conference Ruling No. 48, referred to in the Hoopes case had been withdrawn since that decision. Chicago & N.W. Ry. Co. v. E. C. Tecktoriens Mfg. Co., 262 F. 715. (2) The court erred in giving Instruction No. 2 as asked by the plaintiff, because Armour & Company being the consignor, the plaintiff could not recover from the defendants under the allegations in its petition. "The rule is that the consignor is the party primarily liable for the payment of the freight, and this rule is enforced, independant of the question whether the consignor is the owner, and regardless of the question whether the payment of freight is secured by a lien on the cargo, because the consignor is the party for whom the services is performed." Wells-Fargo & Co. v. Cuneo, 241 F. 727. (3) . . . . "Interest and cost" is insufficient. In fact said allegation is not one upon which an instruction for interest could be based. The petition should state the date from which the interest is charged and the rate thereof. Moore v. McHaney, 191 Mo.App. 686-98. (4) Madison v. Mo. P. R. R. Co., 60 Mo.App. 599. The court said in that case, "The evidence of defendant was admitted on the trial without objection as already stated as if competent under the general denial or as if specially pleaded. Such being the case, the instruction based upon the issues made at the trial by the conduct of the parties should, we think, have been given even if the trial court did hold that defense was not sufficiently pleaded since there was no question of surprise. If the plaintiff desired to have saved the point he should have objected to the evidence. The question of pleading was waived by failure to object to the evidence and the defendant had a right to have the case put to the jury on the theory on which by consent of plaintiff, it had been tried." The court should have given Instruction B as requested by the defendants. Yazoo and R. R. Co. v. Zemurray, 238 F. 789.

M. H. Galt for respondent.

(1) The ruling of the court, sustaining plaintiff's demurrer to the defendant's first amended answer is not before this court for review, such ruling was made at the term previous to the trial term; the defendants answered over; no term bill of exceptions was filed. "It is a rule of law that on the filing of an amended petition, the original becomes an abandoned pleading not pertaining to the record proper, and only getting into the record by introducing it in evidence and preserving it in a bill of exceptions." Sutermeister v. Sutermeister, 209 S.W. 955, 957; Campbell v. Boyers, 241 Mo. 430; Mo. P., R. R. Co. v. Continental Bank, 212 Mo. 517. (2) When an amended pleading is filed, the pleading which is superseded cannot be considered unless it is introduced in evidence. Amerland v. Amerland, 188 Mo.App. 55. (3) Considering the ruling of the court on this demurrer, it is the law; that error of the court in sustaining a demurrer is waived by pleading over or by amending or by acquiescing without timely objection to the order of the court. Titus v. Development Co., 264 Mo. 239; Waldron v. Merseal, 162 Mo.App. 380, 384 (4) "It is further argued that the court erred in striking out the first amended answer. If this should be conceded, the appellant is in no condition to take advantage of it . . . If the appellant intended to avail himself of the errors committed by the court in this respect, he should have let judgment go at the time and stood on his exceptions. By pleading over and going to trial on another issue he voluntarily abandoned whatever grounds he might have had for a review of the action of the court," quoting from Tuggle v. Hobbs, 42 Mo. 537, l. c. 541. The case of Tuggle v. Hobbs has been followed in a large number of decisions, some of them are as follows: Clark v. Long, ___ Mo.App. ___, 196 S.W. 413; Kipley v. Park Circuit & Realty Co., 200 S.W. 750; White v. Cardwell Stave Co., 213 S.W. 518; Merkel v. Bouckaert, 213 S.W. 524; Fortney v. Linn Co., 173 Mo. App., 408; State v. Christopher, 212 Mo. 246. (5) As either owner or consignor, and appellant was both, appellant became liable for the freight charges and their liability could be discharged only by payment. B. & F. Marine Ins. Co. v. Portland Flouring Mills, 124 F. 855, 130 F. 860; Central R. Co. v. McChartney, 52 A. (N.J.) 575; Yazoo & M. R. R. Co. v. Pitcher Lead Co., 190 S.W. 387; Wells-Fargo & Co. v. Cuneo, 241 F. 727; Brush v. Keystone Driller Co., 199 S.W. 597.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

The plaintiff, a railroad Company, operating between Chicago, Illinois, and New York City, N.Y., brought this action against defendants, filing its petition on August 24, 1914. By a number of counts it alleges that the defendants shipped over its lines carloads of produce, several of which were shipped from Chicago, and one from the city of Springfield, Mo. That the rate charged for such freight was that established by law for the carriage of this character of merchandise from the initial points to points of destination. Three of the items in the petition are for the full amount of the freight on the cars, one item being for an unpaid balance of $ 100 on another car, and the final item being for $ 2 demurrage charge. The total amount for which judgment was demanded under all the counts was $ 551. 23, for which plaintiff prays judgment with interest and costs.

An amended petition was filed on the 27th day of May 1918. To this amended petition defendants filed an answer setting up a general denial and also setting up a counterclaim for damages claimed on account of negligence and delay in a shipment of produce growing out of other transactions between the parties in the year 1912. This amended answer was filed in February, 1919. A demurrer to the counterclaim set up was filed and passed on in the month of February at the January Term, 1919, which demurrer was sustained. Whereupon, the defendants again filed an amended answer which contained a general denial and which set up the following statement as a defense:

"Further answering, they say that on the--day of March, 1912, they instructed the plaintiff to deliver all cars consigned to them at New York between that date and April 6, 1912, to James Butler, 390 Wash. St., New York, upon the payment of all freight charges against each and every car by the said James Butler, which the said Butler agreed to pay and represented to defendants he had paid, and that the plaintiff agreed to collect said charges from the said Butler before said cars were delivered to him; that the plaintiff delivered said cars for which this action is brought described in Item 1, 2 and 4 to the said Butler and defendants afterwards believing that said Butler had paid said freight had an accounting and settlement with the said Butler and in said settlement paid him the amount of freight charges sued for by plaintiff in this action.

Wherefore, defendants say they owe plaintiff nothing."

The cause was then tried at the May Term, 1919, before a jury, and under the instructions given by the court a verdict was rendered in plaintiff's favor, which forms the basis of the judgment appealed from in this case.

No term bill of exceptions was filed at the January Term, 1919, which eliminates any question of error as to the action of the trial court in sustaining plaintiff's demurrer to the original counterclaim filed by defendants, and appellant makes no serious contention that the original counterclaim filed in the suit is in any way before us on this appeal.

154a The whole question comes down to the defense set up in the answer, that part of which is herein set out, which is that the defendants made an agreement with plaintiffs authorized agent that the plaintiff would collect the freight from Butler & Company of New York, the people to whom defendants had sold the cars of produce. The undisputed facts show that defendants were the owners of this produce; that it was shipped to New York, and defendants named in the bill of lading as the consignees; that the defendants occupied the position of owners, consignors and consignees concerning these shipments. It is true, that the bill of lading of the Chicago shipments was made by Armour & Company, but Armour & Company were agents for the defendants and acted for them. As we are considering a demurrer to defendants' special answer, all the testimony will to taken as true which tends to sustain such answer, and that being so, we must treat the case as though the goods were shipped from initial points by the consignors to themselves in the city of New York; that while the cars were in transit the defendants sold the cars to Butler & Company with the understanding and agreement that Butler & Company would pay the freight due to...