Cunningham v. Wabash R. Co.

• Decision Date: 19 July 1912
• Citation: 149 S.W. 1151
• Parties: CUNNINGHAM et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

149 S.W. 1151

CUNNINGHAM et al. v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

July 19, 1912.

Rehearing Denied October 15, 1912.

1. PLEADING (§ 418—WAIVER OF OBJECTIONS TO PETITION—PLEADING OVER AND TRIAL ON MERITS.

Where a petition is sufficient after verdict to support the judgment, a demurrer thereto is waived by answering and going to trial after it is overruled.

2. CARRIERS (§ 228)—ACTIONS FOR INJURIES TO LIVE STOCK—BURDEN OF PROOF.

In an action against a carrier for injuries to live stock through the carrier's negligence, the burden of proving negligence rests on the plaintiff, since negligence is a positive wrong and will not be presumed.

3. CARRIERS (§ 228)—ACTIONS FOR INJURIES TO LIVE STOCK—EVIDENCE—SUFFICIENCY.

Evidence, in an action for injuries to live stock while being transported by a railroad company, that several times during the trip couplings were made with such severe and unusual force as to severely shock persons riding in the caboose and to knock down coal piled up in a corner of the caboose, makes a prima facie case of negligence so as to present a question for the jury, since, while one may not recover for an injury caused by the ordinary jerk or jar of a freight train, the act of coupling cars with the force shown by the evidence was not of an ordinary or usual character.

4, CARRIERS (§ 228)—ACTIONS FOR INJURIES TO LIVE STOCK—EVIDENCE—SUFFICIENCY.

In an action against a carrier for injuries to live stock, where it appears that the animals were in good condition when delivered to the carrier for transportation and were severely gashed and wounded upon reaching their destination, that their wounded condition indicates that the injuries were received from external violence, and that their physical condition was such as does not usually appear if transported with ordinary care, a prima facie case of negligence is established, and the burden is shifted to the carrier to relieve itself of the charge of negligence, since, while the shipper must offer some proof that the injury was not received as a result of proper vice of the animal or its companions in the car, this is sufficiently shown where their condition indicates external violence.

5. CARRIERS (§§ 108, 216) — CARRIAGE OF LIVE STOCK—LIABILITY FOR INJURIES.

As to inanimate freight, a carrier is an insurer against all perils excepting only the act of God, the public enemy, and the negligence of the shipper; but as to live stock there is to be also excepted the proper vice of the animal.

6. PRINCIPAL AND AGENT (§§ 47, 116)— POWERS OF AGENT—APPARENT AUTHORITY.

An agent of a railroad company in charge of both its freight and ticket offices and conducting its business in both departments at a particular place has apparent authority to accept checks in payment of freight charges, and any limitations on this apparent authority will not affect persons dealing with him without knowledge of such limitations.

7. CARRIERS (§ 213)—EXCUSES FOR FAILURE TO MAKE—FAILURE TO PRODUCE MONEY.

In an action against a carrier for injuries to live stock from exposure due to a mistake of the carrier's agent as to the amount of freight and his refusal to permit the animals to be taken from the railroad stock pens until the freight was paid, the fact that the shipper offered a check in payment of the freight and made no tender of the money did not relieve the carrier from liability, where it appeared that if the money had been tendered it would have been refused, and even after the agent agreed to accept the check he refused to accept it for the actual amount of freight due.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by William Cunningham and others against the Wabash Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

N. S. Brown, of St. Louis, and Robertson & Robertson, of Mexico, Mo., for appellant. E. S. Gantt, of Mexico, Mo., for respondents.

NORTONI, J.

This is a suit for damages accrued to plaintiffs through defendant's negligence with respect to the shipment of a car load of horses which it had for the purpose of transportation. Plaintiffs recovered, and defendant prosecutes the appeal. In February, 1910, plaintiffs shipped 32 head of horses over defendant's railroad from Des Moines, Iowa, to Mexico, Mo. The horses arrived at Mexico on the morning of February 22d, about 6:30 o'clock, and upon their arrival it was discovered that three of them had been seriously injured. The evidence tends to prove the horses were sound and in good condition when loaded into the car and the transportation commenced, but upon reaching Mexico one of the mares had a considerable gash in her head and a gash on her hip also. Another mare revealed a gash in her hip, and a filly had suffered a severe cut on the hind leg. The horses were heated and slightly perspiring when they reached Mexico, and while in this condition were removed from defendant's car into defendant's stock pen. Plaintiff sought to remove the horses immediately from the stock pen to a barn, but was prevented from doing so by defendant's agent on account of a controversy over the freight charge.

It appears that the freight on the car was $70, and of this fact plaintiffs had been informed before the shipment commenced. One of the plaintiffs, Cunningham, went to defendant's depot about 7 o'clock in the morning and started to write his check for this amount. Defendant's agent informed him, however, that he would not accept the check and that the freight charge was $77. This amount plaintiff refused to pay, insisting that $70 was the proper charge. Finally one Powell informed defendant's agent that plaintiff's check was perfectly good, and the agent agreed to accept it, but insisted that a payment of $77 should be made thereby. It appears that plaintiff was ready and willing all the time to pay the $70, but defendant's agent declined to permit him to take possession of the horses until $77 was paid as the freight thereon. The horses stood exposed to the weather In the stock pen during this time, and through exposure incident thereto several of them contracted pneumonia, from the effects of which one died.

The first point put forward for a reversal of the judgment concerns the sufficiency of the petition. Defendant interposed a demurrer to the petition, but, upon its being overruled, it answered over and went to trial. When considered after verdict, the petition is obviously sufficient to support the judgment. This being true, the argument now directed against it is wholly without merit, for the demurrer and the point raised thereby were waived by the act of answering over. See Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S. W. 1166.

It is argued that the court erred in submitting to the jury the question of defendant's liability for damages accrued on account of injuries inflicted upon the horses during transit on the cars....