Edwards v. Lee

• Citation: 126 S.W. 194,147 Mo. App. 38
• Parties: EDWARDS v. LEE et al.
• Decision Date: 21 February 1910
• Court: Court of Appeal of Missouri (US)

126 S.W. 194

147 Mo. App. 38

EDWARDS v. LEE et al.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

1. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK — LOSS — DELIVERY OF OTHER STOCK — EVIDENCE.

In an action against a carrier for damages for delivering inferior cattle to plaintiff's consignee in place of those shipped by plaintiff, evidence held to sustain a finding that some of the cattle delivered to the consignee as plaintiff's were not shipped by him.

2. CARRIERS (§ 215) — CARRIAGE OF LIVE STOCK — LOSS — DELIVERY OF OTHER STOCK.

A carrier was liable for damages caused by delivering to plaintiff's consignee cattle other than those shipped by plaintiff, irrespective of to whom such other cattle belonged.

3. CARRIERS (§ 212) — CARRIAGE OF LIVE STOCK — DELIVERY — SUFFICIENCY.

Cattle shipped were delivered to the consignee when they were receipted for and taken charge of by its agent, so that the carrier would not thereafter be responsible for them.

4. TRIAL (§ 248) — INSTRUCTIONS — ABSTRACT INSTRUCTIONS.

Abstract propositions of law should not be charged, even though correct.

5. CARRIERS (§ 230) — CARRIAGE OF LIVE STOCK — INJURY TO CATTLE — CAUSE OF INJURY — INSTRUCTIONS.

In an action against a carrier for damages by breach of the contract of shipment, an instruction that if defendant failed to deliver the cattle to the shipper's consignee in good condition, being prevented only by the act of God or the public enemy, and plaintiff sustained damage by reason of such failure, the carrier was liable, was erroneous as making it liable, though prevented from delivering the cattle by the act of God or the public enemy.

6. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — ABSTRACT INSTRUCTION.

In an action against a carrier for failure to deliver cattle shipped, error in instructing that the carrier was liable, though prevented from delivering by act of God or the public enemy, was harmless, where defendant claimed that the stock were, in fact, delivered, and did not defend on the ground that they had been lost through such causes.

7. TRIAL (§ 252) — INSTRUCTIONS — CONFORMITY TO EVIDENCE.

In an action against a carrier for damages for delivering inferior cattle to plaintiff's consignee in place of those shipped by plaintiff, it was error to instruct that the jury should award damages on the basis of the difference between the weight of the cattle delivered and those shipped by him, where there was no evidence as to the weight of the cattle shipped.

8. CARRIERS (§ 229) — CARRIAGE OF LIVE STOCK — LOSS — DELIVERY OF OTHER CATTLE — MEASURE OF DAMAGES.

In an action against a carrier for damages caused by delivering inferior cattle to plaintiff's consignee in place of those shipped by plaintiff, the measure of damages was the difference in the market value per hundredweight or head at destination between the cattle shipped and those delivered as plaintiff's and not the difference in the quality of the two lots.

9. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK — ACTIONS — BURDEN OF PROOF — DAMAGES.

In an action against a carrier for damages by delivering inferior cattle belonging to another to plaintiff's consignee in place of those shipped by him, the burden is on plaintiff to show the market value of the cattle shipped and those delivered as his, so as to enable the jury to determine the difference in assessing damages.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Pete Edwards against Reese Lee and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Faris & Oliver, for appellants. W. W. Corbett, Duncan & Bragg, for respondent.

GOODE, J.

Case for damages against defendants as common carriers. Defendants operate a steamboat line on the Mississippi river. They keep boats, among them the Stacker Lee, plying between the ports to the south of St. Louis and this city, carrying freight and passengers. Petition alleges plaintiff on January 23, 1907, delivered to the captain of the Stacker Lee, on board the boat at Richard's Landing, 11 head of steers, which were fat and had been corn fed during the fall and winter and were of the value of $250. The captain of said boat representing defendants agreed safely to transport said cattle and deliver them to Smith Bros. & Sparks, at St. Louis, Mo., giving plaintiff at the time a bill of lading which is attached to the petition as part of it. Defendants, through said captain and other agents and employés on the steamboat, committed breaches of the contract of shipment, in this: They failed to deliver the cattle according to the contract, and said captain and employés permitted the cattle to be delivered to other persons than those to whom they were consigned, allowed plaintiff's cattle to become mixed with other and inferior cattle so his were delivered to the wrong persons and the inferior cattle delivered to Smith Bros. & Sparks in place of plaintiff's to his damage in the sum of $250, for which he prayed judgment. Answer denied the statements of the petition.

We have not found the bill of lading in the transcript, but the evidence shows without conflict plaintiff loaded 11 steers on the Stacker Lee at Richard's Landing on January 23, 1907, to be carried to St. Louis and delivered to the consignees Smith Bros. & Sparks. The cattle were accepted by defendants for carriage on the same morning as were 10 head of other cattle belonging to a man named Oakley, which were loaded at the same landing and just prior to the hour when plaintiff's were put on. As to where the two lots of cattle were placed on the boat with reference to each other, there is a conflict; the testimony for defendants being they were put on opposite sides of the boat, either when loaded or shortly after. A witness said one lot was placed on the starboard and the other on the larboard side; whereas, the testimony for plaintiff was both lots were put on the same side of the boat and beside each other, being separated by portable gates which were set up to keep them apart. These gates were about four feet high and fastened in some manner to keep them erect, but whether stanchly enough to do that is in doubt. Testimony for plaintiff goes to prove his steers were in fine condition, weighed from 850 to 1,000 pounds each, and were worth from $3 to $3.25 a hundredweight; that Oakley's cattle were all smaller, some of them were heifers, and they were worth considerably less per hundredweight; also Oakley's lot would weigh 3,000 or 4,000 pounds less than plaintiff's lot. Plaintiff testified he...