Cole v. Railway Express Co.

• Decision Date: 20 February 1934
• Docket Number: No. 5270.,5270.
• Citation: 68 S.W.2d 736
• Parties: D.E. COLE, RESPONDENT, v. AMERICAN RAILWAY EXPRESS COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

68 S.W.2d 736

D.E. COLE, RESPONDENT, v. AMERICAN RAILWAY EXPRESS COMPANY, A CORPORATION, APPELLANT.

No. 5270.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Appeal from Circuit Court of Newton County. — Hon. Emery Smith, Judge.

AFFIRMED.

A.M. Hartung, Allen McReynolds and Newell Blair for appellant.

A petition may not be amended so as to change the cause of action. R.S. 1929, Sec. 819; State ex rel. Bankers Life Co. v. Reynolds, 277 Mo. 14, 208 S.W. 618; Carter v. Dilley, 167 Mo. 564; Lee v. W.E. Fuetterer Battery Supplies Co., 23 S.W. (2d) 45; Liese v. Meyer, 143 Mo. 547, 45 S.W. 282; Arrowwood v. Delayney's Estate, 295 S.W. 522; Grigsby v. Barton County, 169 Mo. 221, 69 S.W. 296. A person sentenced to the penitentiary for a term less than life loses his civil rights during such time and cannot himself maintain an action in a court of law in Missouri. R.S. 1929, Sec. 12968; McLaughlin v. McLaughlin, 228 Mo. 635, 129 S.W. 21; Murphy v. Baron, 275 Mo. 282, 205 S.W. 49; Gray v. Gray, 104 Mo. App. 520, 79 S.W. (2d) 505. The carrier is not an insurer of perishable goods as against loss due solely to such cause. If goods are lost or damaged on account of their inherent perishable nature without fault of the carrier, there is no liability. Singer v. American Express Co., 219 S.W. 662; Vernon et al. v. American Ry. Express Co., 222 S.W. 913, 914, 947; Libby v. St. L.I.M., etc., R. Co., 137 Mo. App. 276, 117 S.W. 659.

Foulke & Foulke for respondent.

There are two well-established rules to determine whether or not the amended petition is a departure. They are, first, will the same evidence support both petitions, and second, will the same measure of damages apply to each. Jacobs v. Chicago, P. & St. Louis R. Co., 204 S.W. 954. Amendments are almost entirely discretionary with the court and appellate courts will rarely, if ever, interfere with the exercise of this discretion. Cases cited, supra; State ex rel. v. Reynolds, 208 S.W. 618; Missouri Pac. R.R. Co. v. Clark, 268 S.W. 97. A person sentenced to the penitentiary for less than his natural life loses his civil rights only during such term of imprisonment. Commutation of sentence by executive act of the Governor declaring in said commutation that said term of imprisonment was thereby ended and civil rights restored, returns to convict his civil rights. R.S. 1929, Sec. 12968.

ALLEN, P.J.

This action was commenced July 27, 1929, before S.W. King, a justice of the peace in McDonald county. Judgment by default was rendered for plaintiff August 12, 1929. The cause was appealed to the Circuit Court of McDonald County. On August 23, 1932, by stipulation, the cause was transferred to Newton county circuit court, where on October 19, 1932, plaintiff was permitted to amend his petition by striking out the words "negligently and carelessly." A jury upon a trial, rendered a verdict for the plaintiff for $50. The petition omitting the words stricken out, is in substance as follows:

"That on October 24, 1927, and after said hog had been accepted for transportation by said defendant, the defendant by its agent and servants ... let the crate, in which said hog was held and while said hog was so confined in said crate, remain in the hot sun for a long period of time before loading, where the said hog was subjected to torments by children, who were permitted by the servants and agents of the defendant to punch said hog with sticks, so that said hog was so irritated and became so exhausted that while in transit between the points of Anderson, Missouri, and Watts, Oklahoma, the said hog did die, to the damage of the plaintiff in the sum of $100 for which he asks judgment."

Before the trial was begun appellant offered the following exception:

"We except to the action of the court in permitting the plaintiff to strike out the words `negligently and carelessly' in plaintiff's petition, for the reason that it constitutes an entire change of action."

Upon which the court stated that "by reason of the permission given plaintiff to amend his cause of action, by striking out the words `negligently and carelessly' that the defendant if in any way not prepared for trial, an opportunity will be given upon the application to this court for continuance." No such application appears in the record, upon which the parties proceeded to trial of the cause.

The facts disclosed by the evidence were substantially as follows:

The respondent, on October 24, 1929, between four and six o'clock P.M., brought to appellant's station, at Anderson, in McDonald county, Missouri, for shipment to Stuttgart, Arkansas, a male hog, crated for shipment. When the hog was unloaded at the station appellant's agent was not present and did not appear for about an hour thereafter, during which time the hog was left on the station platform. When the agent of appellant arrived the crate was removed from the west platform to the inside, where it was left for a while and afterwards set out on the east platform, where later in the evening, about eight o'clock, it was loaded on the train. The day had been very hot. For some time after the hog was left at the station it was in the sun.

Shortly before the train arrived, the evidence showed that there were some boys bothering the hog, by running around the truck, jumping on and off. There was nothing on the truck besides the hog and the boys, as they jumped on and off.

A deputy State veterinarian, for appellant, examined the hog the next day after its death, and stated that its death was caused by pneumonia; that he could have contracted the trouble and died therefrom, within the space of two hours. That what is ordinarily called overheating is often acute pneumonia. That if the hog had been teased by boys punching it with sticks, while it was in the crate it would excite it and make it hot.

The evidence showed that when the hog was loaded into the express car, at Anderson, Missouri, it was hot and agitated. The express messenger placed the crate in the car door. The run from Anderson, Missouri, to Watts, Oklahoma, was about sixty miles, and it required about an hour and forty-five minutes to make the run. The hog died en route and was unloaded at Spiro, Oklahoma.

The assignments of error by appellant and our conclusions thereon, are as follows:

1st: Appellant urges that it was error to permit plaintiff, in the circuit court, to strike from his statement, upon which the cause was tried in the justice court, the words "carelessly and negligently," which appellant insists was a change of the cause of action.

To this contention we cannot agree, since the elimination of the words "carelessly and negligently" from the statement, left remaining in plaintiff's statement the charge that defendant, by its agents and servants allowed the crate in which the hog was held and confined, to remain in the hot sun for a long time before loading and after its removal to shade, where it was subjected to teasing and tormenting, inflicted by children, who were permitted by defendant to jump on and off the truck upon which the hog was loaded and to punch the hog with sticks so that it became irritated and exhausted, and while in transit died.

The evidence was that the crate when loaded in the express car, which was traveling south, was placed on the north side of the car door, to get the breeze, which, because of the heated condition of the hog, resulted in pneumonia, from which his death occurred within about an hour and a half after the departure of the train from Anderson.

The question, therefore, upon the first assignment of error is, did the circuit court err in permitting the plaintiff to strike out of his statement the words "carelessly and negligently," and did that result in a change of the cause of action? Section 2360, Revised Statutes 1929, provides that: "In all cases of appeal, the bill of items of the account sued on or filed as a counterclaim or set off, or other ground of defense filed before the justice, may be amended upon appeal in the appellate court, to supply any deficiency or omission therein, when by such amendment substantial justice will be promoted, but no new item or cause of action not embraced or intended to be included in the original account or statement shall be added by such amendment... ." The courts have universally held that "This statute is remedial and should be given a liberal construction."

"The amended statement still charges the same general cause of action... .

"It was not the introduction of an entirely new cause... . As long as the plaintiff adheres to the contract or injury originally declared upon an alternation of the modes in which the defendant has broken the contract or caused the injury, it is not an introduction of a new cause of action. If the amendment is merely the same matter, more fully or differently laid to meet the possible scope of the testimony it is not a change of the cause of action. [Rippee v. K.C., Ft. Scott & Memphis Ry. Co., 154 Mo. 358, l.c. 363-495, 55 S.W. 438.]

"In the case at bar, the cause of action under the amended petition was the identical cause of action counted on the original. It substantially required the same quantum and quality of evidence, the measure of damages under each, the amendment did not substantially change the claim or defense. Hence the general identity of the transaction was preserved and we conclude there is no substance in the assignment of error at hand." [Cytron v. Transit Co., 205 Mo. App. 692, l.c. 702, 104 S.W. 109.]

"A change from the common-law measure of negligence to the statutory one in such cases, when preserving the identity of the resulting injury and measure of damages is not a departure.

"The question of whether a change from law to law is or is not a change of the cause of action, depends at times on the question whether the facts essential to constitute the cause of action are the same or different in the two pleadings rather than whether...