Cunningham v. Wabash Railroad Co.

• Decision Date: 19 July 1912
• Citation: 149 S.W. 1151,167 Mo.App. 273
• Parties: W. E. CUNNINGHAM et al., Respondents, v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

149 S.W. 1151

167 Mo.App. 273

W. E. CUNNINGHAM et al., Respondents, v. WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 19, 1912

Motion for Rehearing Overruled October 15, 1912.

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

AFFIRMED.

Judgment affirmed.

N. S Brown and Robertson & Robertson for appellant.

(1) The petition improperly joins a cause of action ex contractu and a cause of action ex delicto, and the court erred in overruling defendant's demurrer, defendant's objection to the introduction of any evidence, the motion for new trial, and motion in arrest of judgment, raising this objection. Pipe Co. v. Railroad, 137 Mo.App. 479; Barnes v. Railroad, 119 Mo.App. 303; The Southworth Co. v. Lamb, 82 Mo. 242. (2) The court erred in refusing to direct a verdict for the defendant at the close of the evidence for the plaintiff, and also in refusing to direct a verdict for the defendant at the close of all the evidence. (A) Under the evidence there could be no recovery for any bodily injuries received by any of the horses for the reason that there was no negligence in the operation of the train. Fruit & Nut Co. v. Railroad, 143 S.W. 839; Lay v. Railroad, 138 S.W. 884; Cornett v Railroad, 138 S.W. 51. The evidence of jerks of the freight train is no evidence of negligence. Hedrick v Railway, 195 Mo. 104; Wait v. Railway, 165 Mo. 612; Howell v. Railway, 149 Mo.App. 629; Saxton v. Railway, 98 Mo.App. 494; Guffey v. Railway, 53 Mo.App. 469. (B) There could be no recovery by reason of any of the horses having colds or pneumonia or dying therefrom. The plaintiffs made no legal tender of the freight charges and were unable to make any legal tender, and were therefore not entitled to delivery of the horses. 28 Am. & Eng. Ency. Law (2 Ed.), pp. 5, 7; 38 Cyc. 142, 143; Leek Milling Co. v. Langford, 81 Miss. 728; Eddy v. Davis, 116 N.Y. 251; Brown v. Binz, 50 S.W. 483; Lilienthal v. McCormick, 117 F. 89. The agent could not waive the legal tender because such waiver was not for the benefit of the principal and the rule of the defendant prohibited the taking of anything except legal tender in payment of freight. 1 Am. & Eng. Ency. Law (2 Ed.), 1028, 1029; 31 Cyc. 1376, 1378; Buckwalter v. Craig, 55 Mo. 71; Gowling v. Express Co., 102 Mo.App. 371; Ward v. Smith, 7 Wall. 452. The evidence showed the holding of the horses in the pens after Cunningham first called at the freight office did not cause the colds and pneumonia. That this was caused by the heated condition of the horses when they were first unloaded. (3) The court erred in giving plaintiff's instruction No. 1. 1 Am. & Eng. Ency. Law (2 Ed.), 1028, 1029; 31 Cyc. 1376, 1378; Buckwalter v. Craig, 55 Mo. 71; Gowling v. Express Co., 102 Mo.App. 371; Ward v. Smith, 7 Wall. 452. (4) The court erred in giving plaintiffs' instruction No. 3. This instruction is contrary to evidence in submitting that "at or about the time of the arrival of said horses . . . the plaintiffs were ready and willing to receive them and to pay all legal freight charges against them;" also in submitting that "after defendant's agent refused, if you find he did refuse, to deliver said horses to plaintiffs and accept the legal freight charges." There was no tender of the charges, and no refusal. (5) The court erred in refusing defendant's modified instruction "B" as asked and in giving it in the modified form. Gowling v. Express Co., supra, and other authorities cited under point 2, B. (6) The court erred in refusing defendant's instruction No. 2. Authorities cited under point 2, B. (7) The court erred in refusing defendant's instruction No. 4. See authorities cited under point 2, B.

E. S. Gantt for respondent.

(1) The petition states a cause of action ex delicto and the court did not err in overruling the defendant's demurrer. Luke v. Railroad, 3 Mo.App. 77; Heil v. Railroad, 16 Mo.App. 363; Glascock v. Railroad, 86 Mo.App. 114; Rideout v. Railroad, 81 Wis. 237; Bowers v. Railroad, 107 N.C. 725; Wernick v. Railroad, 131 Mo.App. 37; 6 Cyc. 513; Brown v. Railroad, 135 Mo.App. 624; Clens v. Railroad, 119 Mo.App. 245. By pleading to the merits defendant waived all objection to the petition. Hof v. Railroad, 213 Mo. 445; Dodge v. Coal Co., 115 Mo.App. 501; Bannock v. Railroad, 200 Mo. 561; Hudson v. Cahoon, 193 Mo. 547; White v. Railroad, 202 Mo. 539. Defendant did not file motion to elect. Mooney v. Kennett, 19 Mo. 555; Childs v. Railroad, 117 Mo. 437; The Southworth Co. v. Lamb, 82 Mo. 242. (2) There was abundant evidence to entitle plaintiffs to go to the jury on the question of defendant's negligence in handling the car. Libby v. Railroad, 137 Mo.App. 280; Forest v. Lee, 138 Mo.App. 722; Green v. Railroad, 156 Mo.App. 263; Hurst v. Railroad, 117 Mo.App. 38; McFall v. Railroad, 117 Mo.App. 483; Griffin v. Railroad, 115 Mo.App. 552; Livery Co. v. Railroad, 105 Mo.App. 558; Cash v. Railroad, 81 Mo.App. 109; Hance v. Express Co., 48 Mo.App. 179; Witling v. Railroad, 101 Mo. 631; 6 Cyc. 381. The evidence of jerks of a freight train may not be evidence of negligence but evidence tending to show that a train was uncoupled and went in on a side track for a car and then came out on the main track and backed into the cars and caboose with such force that coal was knocked out of the box and scattered over the floor and persons in the caboose nearly knocked down is evidence of negligence. Of course, the defendant is not liable for jerks necessarily incident to the use of the train, and that is what the personal injury cases cited by appellant hold. They are cases where the jerk was caused by the slack in the train. Besides, in those cases, the defendant placed the train crew upon the witness stand and explained the movement of the train. Jones v. Railroad, 31 Mo.App. 614; Guffey v. Railroad, 53 Mo.App. 462; Choate v. Railroad, 67 Mo.App. 108; Pomeroy v. Railroad, 51 N.E. 523; Beebe v. Railroad, 50 N.E. 1019. (3) The court did not err in giving plaintiffs' instruction No. 1. (a) Richards was a general agent of the defendant. He had full charge of both the freight and passenger business of defendant at Mexico. Edwards v. Insurance Co., 100 Mo.App. 695; Hackett v. Van Frank, 105 Mo.App. 384; Hill v. Bank, 87 Mo.App. 590; Sweet v. Sullivan, 77 Mo.App. 123; Clack v. Supply Co., 72 Mo.App. 506; Cross v. Railroad, 71 Mo.App. 585; Walkins v. Edgar, 77 Mo.App. 148; Cross v. Railroad, 141 Mo. 132; Railroad v. Railroad, 110 Mo.App. 300; Reynolds v. Railroad, 114 Mo.App. 672; Hanbelt Bros. v. Mill Co., 77 Mo.App. 679. (b) Limitations imposed by the principal on the apparent authority of the agent are not binding on third parties. Baker v. Railroad, 91 Mo. 152; Ganer v. Railroad, 72 Mo.App. 34; Merriwether v. Railroad, 128 Mo.App. 647; Miller v. Railroad, 62 Mo.App. 252; Wilson v. Railroad, 66 Mo.App. 388; 31 Cyc. 1327. (c) In making a tender all that is necessary is for the debtor to have the money in his immediate possession or control or within reach. Steele v. Biggs, 22 Ill. 643; Wyllie v. Mathews, 60 Ia. 187; Niederhauser v. Railroad, 131 Mich. 550; Wynkoop v. Cowning, 21 Ill. 570; Smith v. Building Assn., 119 N.C. 257; Steckel v. Stanley, 107 Iowa 694; Sharp v. Todd, 38 N.J.Eq. 324. (d) The money or check need not be offered if the creditor declares he will not receive it. Stephenson v. Kilpatrick, 166 Mo. 262; Berthold v. Reyburn, 37 Mo. 586; Whelan v. Rielly, 61 Mo. 568; Walsh v. Assn., 101 Mo. 534; Westlake v. St. Louis, 77 Mo. 47; Johnson v. Garlich, 63 Mo.App. 578; Bender v. Bean, 52 Ark. 131; Ventres v. Cobb, 105 Ill. 33; Lacey v. Wilson, 24 Mich. 479; Abrams v. Suttles, 44 N.C. 99; Haney v. Clark, 65 Tex. 93.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

--This is a suit for damages accrued to plaintiffs through defendant's negligence with respect to the shipment of a carload of horses which it had for the purpose of transportation. Plaintiffs recovered and defendant prosecutes the appeal.

In February, 1910, plaintiffs shipped nineteen head of horses over defendant's railroad from Des Moines, Iowa, to Mexico, Missouri. The horses arrived at Mexico on the morning of February 22, 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 seventy dollars and of this fact plaintiffs had been informed before the shipment commenced. One of the plaintiffs, Cunningham, went to defendant's depot about 7:00 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 seventy-seven dollars. This amount plaintiff refused to pay insisting that seventy dollars 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 seventy-seven dollars should be made thereby. It appears that plaintiff was ready and willing all the time to pay the seventy dollars, but defendant...