Cudahy Packing Company v. Atchison, Topeka & Santa Fe Railway Company
| Decision Date | 18 February 1918 |
| Citation | 201 S.W. 623,198 Mo.App. 520 |
| Parties | THE CUDAHY PACKING COMPANY, a Corporation, Respondent, v. THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Corporation, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas B. Buckner, Judge.
AFFIRMED IN PART. REVERSED IN PART.
Thomas R. Morrow, Geo. J. Mersereau, John H. Lathrop, Sloane Turgeon and J. D. Hamilton for appellant.
New Miller, Camack & Winger, P. E. Reeder and John Taylor for respondent.
This suit was brought in three counts. The second count was dismissed. The first count is for damages to a car of fresh meat shipped by plaintiff from Wichita, Kansas, to New York City; the third count is for damages to a car of fresh meat shipped from Wichita, Kansas, to Passaic, N. J. Plaintiff having recovered on both counts, defendant has appealed.
Defendant urges that there was no evidence that the meat was in good condition at the time it was delivered to the defendant at the point of origin, as alleged in the petition. Plaintiff's evidence on this point shows that the meat was branded and packed in the usual way at its packing plant located at Wichita, Kansas; that all meat was inspected by government inspectors immediately before and after is was butchered and when loaded was again inspected, and this latter inspection included an examination of the interior of the car to see that it was sanitary properly cleaned, that the doors were closed properly and that the roof was tight; that the government would not allow meat that was not properly inspected and branded to go into the cars; that the manner of preparing a shipment of meat was that cattle, veal and sheep were retained, after being killed, in its packing plant from one to six days before being shipped, so that it would be entirely free from animal heat; that it was then in proper condition for shipment; that pork was shipped two or three days after killed; that under proper refrigeration all meats so shipped would keep for thirty days.
The evidence, although general as to the condition of the meat shows that it was packed under the general and invariable practice as already detailed, and under the circumstances this evidence was sufficient to show that the meat was properly packed and that it was in good condition at the time it was delivered to the defendant. [Equitable Elevator Co. v. U. P. Ry. Co., 191 S.W. 1067.]
Defendant complains of the refusal by the court to give its instruction No. 15, which sought to tell the jury that if the damage to the meat was caused by the insufficiency of the cars to properly refrigerate or cool the meat, even though defendant followed the icing instructions given by plaintiff in its bill of lading, that is to say, that the cars were not proper refrigeration plants, their verdict should be for the defendant.
These shipments of meat were in sealed cars of plaintiff's own make and choosing, and defendant had nothing to do with the inside thereof except to follow the icing instructions. Defendant introduced evidence tending to show that it followed the icing instructions and that the cars were moved forward without delay. Under these circumstances defendant says that there was evidence that tended to eliminate every possible cause but that the meat spoiled by reason of it not being properly packed. [Citing Cudahy Packing Co. v. A. T. & S. F. Ry. Co., 193 Mo.App. 572.]
Without passing upon the sufficiency of this evidence, we find that this defense was not pleaded and for that reason the instruction should not have been given. [McCarthy & Baldwin v. Louisville and Nashville R. R. Co., 102 Ala. 202-203; 10 Corpus Juris., pp. 110 and 373.] However, defendant urges that it pleaded this defense, in that it set up in its answer that the damage to the meat was "due to the condition of the meat or its natural propensity and tendency to decay and spoil," and not due to any act of the defendant or the failure of the defendant to in any way perform its duty as a carrier. We do not think that this allegation includes an allegation that the meat spoiled as a result of an act or fault of the shipper in failing to furnish proper refrigerating cars. If defendant desired to rely on a claim that the meat spoiled on account of such a fault of the shipper, it should have set up this defense in its answer. A defense that the meat spoiled by reason of its inherent qualities does not necessarily include a defense that it spoiled as the result of a fault of the shipper in failing to furnish proper refrigerating cars. Cases can be imagined where the shipper would not be at fault in packing goods and still they would be damaged by reason of defects inherent in them. There is nothing in the case of Cudahy Packing Co. v. A. T. & S. F. Ry. Co., supra, to the effect that a pleading that meat spoiled from its inherent tendency to decay includes an allegation that it decayed because not in proper refrigerating cars. The court in that case was not discussing the question of pleading but the question as to whether the defendant introduced evidence of a circumstantial nature tending to prove that the meat spoiled because not properly packed. The sole question considered in that case was a question of evidence, that is, whether the lower court erred in giving a peremptory instruction in favor of plaintiff when it was claimed that the evidence was conflicting. In the case at bar the court gave an instruction for defendant telling the jury that if the meat spoiled on account of any natural infirmity of the meat, they should find for defendant.
Nor do we think that a defense that the meat spoil because of being packed in defective refrigerating cars was covered by the general denial. The petition did not allege that the refrigerating cars were proper ones but pleaded that the meat was accepted by defendant in the cars in which it was packed. If defendant chose to accept the cars regardless of whether they were good refrigerating cars, it was privileged to do so, and yet it would be liable. The general denial raised no issue as to the sufficiency of the cars. As defendant did not set it up, that question was not in the pleadings.
Defendant's third point assumes that defendant's...
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