Connelly v. Illinois Cent. R. Co.

• Decision Date: 13 November 1906
• Citation: 120 Mo. App. 652,97 S.W. 616
• Parties: CONNELLY v. ILLINOIS CENT. R. CO.
• Court: Missouri Court of Appeals

97 S.W. 616

120 Mo. App. 652

CONNELLY v. ILLINOIS CENT. R. CO.

St. Louis Court of Appeals. Missouri.

November 13, 1906.

1. TRIAL—INSTRUCTIONS—DISCREDITING TESTIMONY.

Where, in an action against the initial and connecting carriers for damages to a shipment, each liable only for damages done on its own line, it was shown that it was the custom for the connecting carrier to inspect goods received from the initial carrier, and give a receipt for the shipment, reciting that the goods were received in good order, an instruction that the jury might give such weight to the receipt as it was entitled to, and were not required to accept it as conclusive, and if they believed that the evidence preponderated against the fact stated in the receipt they might so find, was prejudicial to the initial carrier, because discrediting the receipt in the minds of the jury.

2. SAME—ERRORS IN INSTRUCTIONS—RIGHT TO COMPLAIN.

Where, in an action against the initial and connecting carriers for injuries to a shipment, each liable only for damages done on its own line, the initial carrier introduced in evidence a receipt from the connecting carrier, reciting that it had received the goods in good order, the initial carrier might complain of an error in an instruction discrediting the receipt as evidence, whether the instruction was given at plaintiff's or connecting carrier's instance, or on the court's motion.

3. SAME — VERDICT — ERRORS — DISREGARD OF INSTRUCTIONS.

Where, in an action against a carrier for injuries to a shipment, the court charged the jury to find the value of the property if it had arrived uninjured at the point of destination, and subtract therefrom its value in its damaged condition and the reasonable advance charges and freight rates, a verdict assessing the shipper's damages at a specified sum and the amount of the freight bill was erroneous, and could not be cured by remitting the finding for freight charges; for, under the instruction, the amount thereof should have been found by the jury, and deducted from the value of the property.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Frank Connelly against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

McKeighan & Watts and Wm. R. Gentry, for appellant. John D. Gibson, for respondent.

GOODE, J.

This action was instituted to recover damages for injuries done to about half a car load of household furniture shipped by respondent from Jackson, Miss., to East St. Louis, Ill. The shipment was received by the Illinois Central Railroad Company at Jackson, routed to be carried by that company to Winona, Miss., there delivered to the Southern Railroad Company, to be carried to West Point, Miss., there turned over by the Southern Company to the Mobile & Ohio Railroad Company, to be carried to its destination, East St. Louis, Ill. The bill of lading provided that each carrier should not be liable for any damage done to the goods elsewhere than on its own line. The goods were received at Jackson by the Illinois Central Company June 23, 1905, were receipted for by the Southern Railroad Company at Winona on the next day, and on June 29th the car was delivered by the Southern Company to the Mobile & Ohio Company at West Point. An inspection by an employé of the latter company disclosed that the contents of the car were in bad order, and it was returned the next day to the Southern Company. That company held it until July 26th, when it was delivered in bad order to the Mobile & Ohio Company, and carried to East St. Louis. On its arrival there, the furniture was found to be so badly damaged that respondent refused to receive it, and brought this action to recover its value. Some time prior to June 23, 1905, when the goods were received by the Illinois Central Company at Jackson, they had been shipped to Jackson from Pueblo, Colo., and transportation charges had accrued on them, amounting to $88. In some way respondent got possession of the goods without paying these charges, and they were included under the head of "advance charges" in the waybills of the Illinois Central Company and the other carriers which transported the goods to East St. Louis. The charges for transportation from Jackson to East St. Louis made the total accrued charges at the latter point $116.34, or, at least, not in excess of this amount. Under the instruction given on the measure of damages, the jury were directed to find the reasonable market value of the goods at East St. Louis at the date of shipment in the condition they were in when shipped, and subtract from the sum so found their reasonable market value in the condition they were in when they arrived at East St. Louis, and also the reasonable freight rates and advance charges accompanying the shipment.

This action was instituted originally against the three railroad companies, the Illinois Central, the Southern, and the Mobile & Ohio. The evidence proved the goods had been damaged before the last-named company received them, and hence respondent took a nonsuit as to it. The jury returned a verdict in favor of the Southern Railroad Company and against the Illinois Central, assessing respondent's damages at "the sum of $500 and the amount of the freight bill." Thereupon the court entered judgment that "plaintiff have and recover of defendant, the Illinois Central Railroad Company, the sum of $500 and his freight bill, found, as aforesaid, together with his costs and charges herein expended, and that execution issue therefor." Respondent filed a motion to correct the verdict of the jury, which was overruled. Subsequently respondent offered to remit that portion of the verdict awarding him damages for freight charges. This motion to remit was sustained, and judgment entered as follows: "It is therefore considered and adjudged by the court that the plaintiff recover of the defendant, the Illinois Central Railroad Company, the sum of $500, being the residue of said original judgment, together with his costs and charges herein expended, and have execution therefor." Connelly, the respondent, had been an employé of the Illinois Central Railroad Company at its station in Jackson, and when he broke up housekeeping the company's chief agent at Jackson befriended him by allowing him to store the goods in controversy in the company's warehouse. This occurred in March, 1905, several months before they were shipped to East St. Louis. One defense relied on was that the damage occurred to the goods while they were in storage and not during transit. There was contradictory evidence on this point, as there was, also, as to whether, if the goods were in good condition when received at Jackson, the...