Colley v. Cox
| Decision Date | 24 March 1954 |
| Docket Number | No. 7235,7235 |
| Parties | COLLEY et al. v. COX. |
| Court | Missouri Court of Appeals |
Roy Coyne, Max A. Patten, Joplin, for defendant-appellant.
Stemmons & Stemmons, Mount Vernon, Joe W. Collins, Stockton, for plaintiffs-respondents.
In this action for alleged breach of defendant's common-law duty as a common carrier, plaintiffs seek damages for injuries to forty-six head of white-faced cows transported by defendant from the O'Bryan Ranch near Hiattville, Kansas, to plaintiffs' farm near Jerico Springs, Cedar County, Missouri, a distance of seventy to seventy-five miles. Defendant appeals from an adverse judgment of $5,000.
Since the principal contention of defendant-appellant (hereinafter called defendant) upon appeal is that the trial court should have directed a verdict for defendant, a review of the evidence is necessary. Of course, it is axiomatic that, at this state of the litigation, the evidence must be considered in the light most favorable to plaintiffs-respondents (hereinafter called plaintiffs), according to plaintiffs the benefit of all favorable inferences arising from the evidence and disregarding defendant's evidence except insofar as it aids plaintiffs' case. Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233, 234(1); Williamson v. St. Louis Public Service Co., 363 Mo. 508, 512-513, 252 S.W.2d 295, 297(1); Sollenberger v. Kansas City Public Service Co., 356 Mo 454, 462, 202 S.W.2d 25, 29(2).
Plaintiff, Ben Colley, is a farmer and has been engaged in the cattle business 'practically all of my life'. Plaintiff, Garland Colley, is the son of Ben Colley, has been on a farm 'all my life', and in partnership with his father has dealt in livestock since 1946. On October 25, 1951, plaintiffs accompanied by Virge Duvall, a neighbor, and D. O. Wiles, a livestock commission man at the Joplin Stock Yards, drove to the ranch of Joe O'Bryan near Hiattville, Kansas. O'Bryan is a farmer and stockman, who handles several thousand head of cattle at his ranch each year. At this particular time, he had a heard of fifty-four head of white-faced cows in a pasture some twelve or fifteen miles northeast of his home. These cattle had been shipped by train from Texas to the O'Bryan ranch several weeks prior to October 25, 1951, had been unloaded from a spur track into a pasture on the O'Bryan ranch, and were the only cattle in that pasture when plaintiffs went there.
They were described by witness O'Bryan as 'a choice set of stock * * * Hereford cows', bearing the brand 'SMS' which 'is recognized in cattle'--'the best we know of'. They were stock cows, not milk cows, and were handled on horseback. O'Bryan stated that he had no trouble with these cows during the time he owned them; that they were 'not wild * * * not mean cattle in any way, shape or form'; that the herd was calm; and, that they were 'easy and nice cattle to handle'.
O'Bryan was not with plaintiffs when they inspected this herd. Plaintiffs testified that they and neighbor Duvall alighted from their automobile (Wiles remained in the automobile because he had been sick); that they 'walked around among the cattle'; that they were 'a good bunch of cattle'; that 'there wasn't any sick or we wouldn't of bought them'; that the cattle were 'in good condition', none of them were sick, wild or vicious, and none of them had 'any scars or bruises or banged-up places on them'; that, after inspecting these cattle in the pasture for about thirty minutes, looking at them 'as closely as we cared to--we was right up next to them', plaintiffs decided to buy them; and that, on the same day, they purchased the fifty-four head for $13,500.
Plaintiffs, accompanied by Duvall and Wiles, then returned to the Joplin Stock Yards where arrangements were made for defendant to transport forty-six head of these cattle in two trailers from the O'Bryan ranch to the Colley farm on the following Saturday, October 27, 1951. The remaining eight head were to be hauled by Garland Colley in his 'bobtail' truck. Although disputed by defendant, Garland Colley testified that he and his father told defendant that these cattle were to be hauled to the Colley farm two miles east of Jerico Springs, Missouri.
When young Colley went to the Joplin Stock Yards about 8:00 A.M. on Saturday, October 27th, defendant informed him that the trucks had made a trip to Kansas City, but cattle was that of defendant, not of Rook; and, it is conceded that defendant's obligations with respect to such transportation were those of a common carrier.
Garland Colley testified that, while waiting some five or six hours for the tractor-trailer units to arrive at the O'Bryan ranch on October 27th, he was 'around the cattle during all of that time'; that they were in 'excellent condition'; and, that none of them were sick, scarred or bruised. Jay Fry, an employee on the O'Bryan ranch for fifteen years, had 'known' this particular herd for some two or three weeks and had fed them every day. He assisted in loading them on October 27th, stated that they were 'in good shape', and confirmed young Colley's testimony that none of the cattle were scarred, bruised or 'banged up'. 'They were a gentle bunch' and 'they loaded easy and nice'.
William Westoff, who sold cattle for O'Bryan and had been in the cattle business 'off and on all my life', had been 'acquainted' with that herd of cattle for about six weeks; and, although he did not recall having seen them on October 27th, he had seen them the previous day and, in fact, practically every day they had been on the O'Bryan ranch. He described them as 'choice white-face stock cows' and said that, on the day prior to their shipment, the herd 'was in perfect condition'. He likewise expressed the opinion that these cattle were calm and quiet and had no vicious propensities.
The only affirmative defense pleaded in defendant's amended answer was that 'any injury suffered by (plaintiffs) in shipment of said cattle was all due to the carelessness and negligence of the plaintiff when he failed to instruct the drivers where to deliver said cattle and the failure of (Garland Colley) to meet the drivers at the highway point near Fort Scott which was designated by the plaintiff as the point of rendezvous'. In support of this affirmative defense, driver Mayhue testified that, after twenty-three cows had been loaded into each of the two large trailers and the remaining eight cows had been loaded into Colley's 'bobtail', Garland Colley 'mentioned the 69 Cafe in Fort Scott right on the highway' and 'that we would meet there and eat', and that Colley told him in Fort Scott for young Colley until 6:30 to 7:00 P.M. According to Mayhue, he did not know where the cattle were to be taken other than that they were to be delivered 'somewhere in the vicinity of Jerico'.
However, young Colley insisted that, while loading the cattle at the O'Bryan ranch, drivers Mayhue and Wilson in Fort Scott or elsewhere. He said that the two tractor-trailer units left the O'Bryan ranch about fifteen minutes before he did and that, as he proceeded to Jerico Springs, he assumed that they were ahead of him.
While the cattle were being loaded at the O'Bryan ranch, the tractor owned by Rook and driven by Wilson 'developed a little knock'; and, when the two tractor-trailer units stopped at the '69 Cafe' in Fort Scott, driver Mayhue 'called Mr. Rook and told him that he (Wilson) had a knock in his tractor and to send one right out'. In response to Mayhue's call, Rook dispatched a replacement tractor driven by Rex Sullins, who arrived at Fort Scott about 5:15 P.M. The tractor in charge of driver Wilson was detached, the replacement tractor driven by Sullins was hooked to the trailer, and Wilson 'dead-headed' to Joplin with the tractor which had developed 'a knock'. Between 6:30 and 7:00 P.M., drivers Mayhue and Sullins started from Fort Scott toward Jerico Springs. 'We decided maybe he (Garland Colley) was waiting for us down the road'. However, drivers Mayhue and Sullins did not reach Jerico Springs that night, but about 11:00 P.M. they stopped on the highway six or eight miles West of Jerico Springs near a stock corral. Both drivers testified that they looked at the cows in the trailers before going to sleep in their trucks that night; that 'when we parked they was all standing up and all right'; but that (in Mayhue's words) 'when we got up at daylight they was all down'.
In the meantime, young Colley had reached Jerico Springs about 8:00 P.M. Saturday evening, had called his wife and mother-in-law who had come from Stockton to Jerico Springs and 'waited for the trailers while I went to unload my cattle', had returned to Jerico Springs himself and waited there until about 11:00 P.M., and then had gone to Stockton for the night. About 7:30 A.M. on Sunday, October 28th, young Colley located the two tractor-trailer units where they had stopped the previous evening six or eight miles west of Jerico Springs. Mayhue's trailer, which had been unloaded...
To continue reading
Request your trial
-
Denney v. Spot Martin, Inc.
... ... Machens, Mo., 263 S.W.2d 724, 734(16); Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 304. See also Nance v. Atchison, T. & S. F. Ry. Co., 360 Mo. 980, 232 S.W.2d 547, 554(8, 9); Colley v. Cox, Mo.App., 266 S.W.2d 778, 787(21, 22). Unable to find reversible error in any respect assigned, and unable to say that the verdict found by the jury was not authorized by the competent evidence [Hunter v. Helsley, supra, 73 S.W. loc. cit. 721], we conclude that the judgment for plaintiff ... ...
-
Anderson v. Welty, 7793
...in the exercise of their prerogative so to do, accepted plaintiff's story, we have no right to do otherwise on appeal. Colley v. Cox, Mo.App., 266 S.W.2d 778, 787(21); Denney v. Spot Martin, Inc., supra, 328 S.W.2d loc. cit. 406(11); Gould v. M. F. A. Mutual Ins. Co., Mo.App., 331 S.W.2d 66......
-
Hoover v. Whisner
...in the case from which the jury may draw a contrary inference." Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 50(2); Colley v. Cox, Mo.App., 266 S.W.2d 778, 786. Even if this point were raised properly, it would be without merit. Being unable to say, after painstaking examination of the ......
-
Shofler v. Jordan, 7384
...case. Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 870(6); Moore v. Middlewest Freightways, Mo., 266 S.W.2d 578, 579(1); Colley v. Cox, Mo.App., 266 S.W.2d 778, 780(1). The express oral contract alleged in plaintiff's amended petition was 'that if plaintiff would ride a sorrel mare purported......