Dalton v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 02 February 1915
• Docket Number: No. 13857.,13857.
• Citation: 173 S.W. 77
• Parties: DALTON v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

173 S.W. 77

DALTON v. ST. LOUIS, I. M. & S. RY. CO.

No. 13857.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by William Dalton against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Anthony & Davis, of Fredericktown, for appellant. Benjamin H. Marbury, of Farmington, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiff on account of delay in the shipment of stock. Plaintiff recovered, and defendant prosecutes the appeal.

The petition seems to jumble the matter of contract and tort, though it clearly states a cause of action sounding in contract. It is averred that plaintiff, desiring to ship two car loads of cattle from De Lassus, Mo., to the National Stockyards at East St. Louis, Ill., entered into a contract for hire with defendant on the 19th day of August, 1911, for two cars to be furnished at De Lassus to convey the cattle on the morning of August 22d, with a view of transporting them over defendant's railroad to the market for sale on August 23d. Plaintiff, relying upon the contract thus entered into, delivered his cattle at De Lassus to be loaded in the cars on August 22d, but defendant breached its undertaking, in that it failed and refused to furnish the cars as agreed. Because of this plaintiff was delayed in transporting the cattle, and detained them at a pasture near De Lassus until August 23d, when the cars were furnished and the shipment made, but too late for delivery on the market of that day as intended. It is said the shipment reached East St. Louis about 10 o'clock a. m. on August 24th, and in the meantime the market had declined considerably so as to entail a loss upon plaintiff. Continuing, the petition avers that the cattle were loaded on defendant's cars on August 23d about 11 o'clock a. m. at De Lassus, and should, in the usual course, have reached the National Stockyards at East St. Louis in about 12 hours, but, because of the negligence of defendant in handling its train, were delayed in transit, so as to prevent them from being delivered for the early morning market of August 24th, and occasioned a considerable shrinkage and loss of weight, to plaintiff's damage, etc.

Though there are separate paragraphs, the petition contains but one count, and it proceeds as for a recovery both because of the breach of the contract in defendant's failure to furnish the cars on August 22d, as agreed, and the delay consequent thereto, and for damages entailed through loss suffered on account of the alleged negligence in the transportation of the cattle after they were loaded and shipped. Such a pleading is to be condemned, for one may not jumble thus a cause of action in contract with one in tort. See Wernick v. St. Louis & S. F. R. Co., 131 Mo. App. 37, 109 S. W. 1027.

However this may be, if it appear the petition states a cause of action either in contract or in tort, and the evidence tends to support it, the other averments may be rejected as surplusage, and the case should proceed accordingly. Because the paragraph of the petition pertaining to the delay while the cattle were en route to East St. Louis employs apt words in laying a tort as in charging such delay was occasioned through defendant's negligence, it is argued the entire petition should be treated as stating an action in tort, and the judgment reversed, for there is no evidence tending to prove the negligence charged; but we are not so persuaded.

It appears in the evidence that the shipment of cattle started from De Lassus...