Dougan v. Thompson

• Decision Date: 03 April 1941
• Parties: George Dougan et al. Respondents, v. Guy A. Thompson, Trustee for Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Court of Appeals

150 S.W.2d 518

237 Mo.App. 619

George Dougan et al. Respondents, v. Guy A. Thompson, Trustee for Missouri Pacific Railroad Company, a Corporation, Appellant

Court of Appeals of Missouri, Springfield District

April 3, 1941

Appeal from the Circuit Court of Lawrence County; Hon. Emory E Smith, Judge.

Affirmed.

Thomas J. Cole, F. M. McDavid and F. W. Barrett for appellant.

(1) The demurrer at the close of all the evidence, should have been sustained, and it was error for the court to refuse to do so for the following reasons: (a) Because, this being an interstate shipment, it is governed by the rules and decisions of the Federal Courts. (b) Since extraordinary hot weather is an act of God, and under Federal decisions, where property is destroyed by an act of God, but would not have been within the range of the destructive forces except for the negligent delay of the carrier, the act of God, rather than the negligent delay, is the proximate cause. (c) Because plaintiffs' petition states a cause of action for negligence, based on a common-law duty and since plaintiffs' proof of a contract for shipment consisted solely of a specific written contract, there was a failure of proof. (d) Because there was no evidence of negligence in placing cattle where they would be exposed, and no evidence that delays or exposure contributed to cause the damage. (2) The court erred in giving Instruction No. 1: (a) Because this suit is grounded on negligence and Instruction No. 1 permits a recovery without hypothesizing the fact of negligence but leaves the question for speculation. (b) Because it is a comment on the evidence, argumentative, invaded the province of the jury, and is misleading and confusing. It invaded the province of the jury by fixing the time from 1:10 to 1:30 until 4:00 o'clock as a sufficient exposure to constitute negligence and injury. (3) The court erred in giving Instruction No. 2: (a) Because it authorized a recovery for elements not submitted to the jury. (b) Because this was an action for damages to personal property and this instruction does not give the jury any rule by which that damage may be ascertained.

McPherson & Stemmons and Bradshaw & Fields for respondents.

(1) This is an interestate shipment and is governed by the rules and decisions of the Federal Court. Crowell v. St Louis-San Francisco Ry. Co., 11 S.W.2d 1055. (2) Although extraordinarily hot weather is considered an act of God and although under the Federal rule where an act of God and negligent delay concur to cause the damage to an interstate shipment, the act of God is held to be the proximate cause, yet if the carrier could reasonably have anticipated and have guarded against the loss as the probable result of its negligent delay, then the negligent delay, and not the act of God, is the proximate cause of the damage, and the carrier will be held liable. 13 C. J. S. 162; Richards v. Northern Pac. Ry. Co., 173 N.W. 778; Chicago & E. I. R. Co. v. Collins Produce Co., 235 F. 857; 10 C. J. 127. (3) The court correctly overruled the demurrer to the evidence. Ray v. Walker, 240 S.W. 187; Krueger v. Krueger, 107 S.W.2d 967; 13 C. J. S. 403; Thero v. Mo. Pac. R. R. Co., 144 Mo.App. 161; Holland v. Chicago R. I. & Pac. Ry. Co., 139 Mo.App. 702; Cronan v. St. L. & S. F. R. R. Co., 149 Mo.App. 384; Unionville Produce Co. v. Chicago, etc., R.C., 168 Mo.App. 168; Holland et al. v. Hines, 234 S.W. 366; Mo. & N. A. Ry. Co. v. Potts et al., 10 S.W.2d 515; Warren Land Co. v. Chicago, St. P., M. & O. Ry. Co., 195 Ill.App. 157; Atlantic Coastline R. Co. v. South Georgia Milling Co., 161 S.E. 282; Green v. American Ry. Express Co., 34 S.W.2d 1039; Crowell v. St. L.-S. F. Ry. Co., supra; Neely et al. v. Hines, etc., 237 S.W. 906; McMickle v. Wabash Ry. Co., 209 S.W. 611. (4) The trial court did not err in giving Instruction No. 1. Keyes v. Chicago, B. & Q. R. Co., 31 S.W.2d 50; Thero v. Mo. Pac. R. R. Co., supra; Holland v. Chicago, Rock Island & Pacific Ry. Co., supra; 13 C. J. S. 404; Green v. American Ry. Co., supra; Ratliff v. Quincy, etc., R. Co., 118 Mo.App. 644; McFall v. Railroad, 181 Mo.App. 142; McMickle v. Wabash Ry. Co., supra; Neely v. Hines, supra; Berry v. Chicago, A. R. Co., 208 S.W. 622; McCrary v. M. K. & T. Ry. Co., 99 Mo.App. 518. (5) The trial court did not err in giving Instruction 2. Zeikle v. St. Paul, etc., R. Co., 71 S.W.2d 154; Brown v. Adams Transfer & Storage Co., 31 S.W.2d 117; Lakin v. Chicago, etc., Ry. Co., 78 S.W.2d 481; Oliver v. City of Vandalia, 28 S.W.2d 1044; Morrow v. Wabash Ry. Co., 265 S.W. 851; Keyes v. Chicago, etc., Ry. Co., supra. (6) There was no error in admitting testimony on a hypothetical question which had previously come into record without objection from appellant and which included facts which the evidence tended to establish. Frost v. Central Business Men's Ass'n., 246 S.W. 628; Buffum v. F. W. Woolworth Co., 273 S.W. 176; Sullivan v. Union Electric Light & Power Co., 56 S.W.2d 97; Streeter v. Washington, etc., Ins. Co., 68 S.W.2d 889. (7) Since appellant failed to object to the introduction of Exhibit 1, its admission is not now subject to review on appeal. Lochmoller v. Kiel, 137 S.W.2d 625.

Smith, J. Fulbright, J., concurs; Blair, P. J., not sitting.

OPINION

SMITH

This was a suit to recover for loss and damage to two shipments of cattle from LaRussell, Missouri, to East St. Louis, Illinois.

It was filed in the Circuit Court of Lawrence County, Missouri, and was returnable the second Monday in May, 1940. The cause was tried at the September Term, 1940, of said court, on an amended petition, consisting of two counts.

The first count alleged the shipment of three cars of fat steers on July 11, 1938, the same being 75 in number, and shipped to the Wooten Commission Company, East St. Louis, Illinois, for the market. It further alleged that although the steers were well and healthy when loaded, that upon their arrival at East St. Louis, three were found dead, and the others died soon after, and that the remaining 62 were in a greatly depreciated condition, due to the negligent handling, to plaintiffs' damage in the sum of $ 1809.95. The acts of the defendant, and damage to the plaintiffs were alleged to have been due to negligent delays of said shipment, which exposed said cattle to an excessive heat.

The second count of the said petition was based upon a loss of a shipment of cattle over the same route, made on August 8, 1938. The plaintiffs took an involuntary nonsuit as to the same.

The case went to trial before a jury on the first count of plaintiffs' petition, which resulted in a verdict for the plaintiffs in the full amount asked, and judgment was rendered accordingly. After an unsuccessful motion for a new trial, this appeal was made by the defendant.

It is conceded, that this was an interstate shipment, that the death and damage to the cattle were caused by the extreme and unusual heat at the time, and that the case was submitted only upon the negligent exposure of the cattle to the extreme heat by reason of negligent delays and the stopping of the train where the cattle were exposed to the extreme heat.

The case is presented to us under three assignments of error. The first assignment is that the court erred in not sustaining the demurrer to the evidence offered at the close of all the evidence; for the reasons which we quote, as follows:

"1. Because this being an interstate shipment, it is governed by the rules and decisions of the Federal Courts.

"2. Since extraordinary hot weather is an act of God, and under Federal decisions, where property is destroyed by an act of God, but would not have been within the range of the destructive forces except for the negligent delay of the carrier, the act of God, rather than the negligent delay, is the proximate cause.

"3. Because plaintiffs' petition states a cause of action for negligence, based on a common-law duty, and since plaintiffs' proof of a contract for shipment consisted solely of a specific written contract, there was a failure of proof.

"4. Because there was no evidence of negligence in placing cattle where they would be exposed, and no evidence that delays or exposure contributed to cause the damage."

This of necessity occasions a consideration of the evidence. It also calls for a consideration of the charging parts of the petition. That part of the petition involved here is as follows:

"2. THAT on the 11th day of July, 1938, plaintiffs delivered to said railroad at Stotts City, Missouri, for shipment to National Stock Yards, Illinois, for a certain paid amount of freight, seventy-five head of fat steers belonging to the plaintiffs; that the same were shipped without a caretaker from Stotts City, Missouri, to National Stock Yards Illinois, in cars MP-52852, MP-52538 and MP-52997, consigned to Wooten Commission Company, livestock commission merchants, to be by them sold at the opening of the market, and on open market the following day, July 12, 1938, for the account of plaintiffs; and

"3. THAT although said steers when so delivered to said railroad were in sound and healthy condition and free from all disease, yet when said railroad under the direction and operation of said defendant trustee delivered said steers at their destination, three (3) of the steers were found dead in the railroad car and ten (10) others were in such a weakened and damaged condition that they died soon after removal from said railroad car, and the remaining Sixty-two (62) steers were not delivered by defendant to their destination in time to be sold on the market on July 12, 1938, and suffered a thirty (30) pound per head additional shrinkage in weight over what they should have sustained had they been carefully and properly and prudently handled in...