Donoho v. Missouri Pac. Ry. Co.

• Decision Date: 15 February 1916
• Docket Number: No. 17616.,17616.
• Parties: DONOHO v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

184 S.W. 1149

DONOHO v. MISSOURI PAC. RY. CO.

No. 17616.

Supreme Court of Missouri, Division No. 2.

February 15, 1916.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Lester Donoho against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Transferred to Kansas City Court of Appeals.

Action to recover for injury to an alleged valuable race horse while in process of transportation from Independence, Mo., to Denver, Colo., over defendant's railroad and connecting lines. Petition alleges delivery of horse to the defendant, its value of $2,500, defendant's agreement to well and safely carry from initial point to destination, and such injury, through defendant's negligence, as rendered the horse useless and without substantial value. The prayer is for $2,700. of which it is alleged $2,440 was the reasonable value of the horse, after deducting the amount for which it was sold, and $350 alleged to have been expended in attempting to restore the horse to its normal condition. The answer admits that defendant received the horse for shipment as above stated, but denies the alleged value. It further alleges that it agreed only to transport the horse to the end of its own line, and there deliver to a connecting carrier, and that its line of railroad extended only to Pueblo, which is more than 100 miles distant from Denver, and that if any injury was sustained by said horse the same occurred after it had left defendant's line of railroad, and was not due to any fault or negligence on its part. It further sets up that plaintiff agreed that, as a condition precedent to the recovery of any damages for any loss or injury to said horse, he should give notice, in writing, of the claim therefor to some representative of the company before said horse was removed from the place of destination, and that no such notice was ever served on defendant or any of its representatives. The answer further alleges that plaintiff contracted with defendant that, in the event of total loss of the horse, defendant should not be liable for any amount in excess of $100, and that in case of injury or partial loss the amount of damage should not exceed the same proportions. The reply denies these allegations, as well as certain others set up in the answer, but which are not pertinent here.

Upon trial a verdict in the sum of $900 was rendered in favor of plaintiff, and, upon appellant's application, an appeal was granted to the Kansas City Court of Appeals. On the 17th day of February, 1913, and upon appellant's motion, this cause was transferred by the Kansas City Court of Appeals to this court, for the alleged reason that the determination of the issues herein involve the construction of certain provisions of the state and federal Constitutions. On the 2d day of July, 1913, respondent filed in this court his motion to remand the case upon the ground that a decision herein involves no constitutional question, and that this court was without jurisdiction. On the 10th day of July, 1913, said motion to remand was overruled.

Martin L. Clardy and Edw. J. White, both of St. Louis, for appellant. D. C. Finley and Ben T. Hardin, both of Kansas City, for respondent.

REVELLE, J. (after stating the facts as above).

I. In overruling the motion to remand this cause to the Kansas City Court of Appeals no reasons were assigned and no opinion filed. Notwithstanding this we would, under ordinary conditions, regard this action as final and conclusive; but since that time this division has, on two occasions, and after careful consideration, unanimously decided the identical question presented by this record and has held that we are without...