Farmers' Bank v. Wabash R. Co.

• Decision Date: 08 May 1906
• Citation: 95 S.W. 286,119 Mo. App. 1
• Parties: FARMERS' BANK OF LADDONIA v. WABASH R. CO. et al.
• Court: Missouri Court of Appeals

95 S.W. 286

119 Mo. App. 1

FARMERS' BANK OF LADDONIA v. WABASH R. CO. et al.

St. Louis Court of Appeals. Missouri.

May 8, 1906.

1. COURTS—JURISDICTION—WAIVER.

Want of jurisdiction of the person of a defendant, if it appears on the face of the petition, must be taken advantage of by demurrer, and, if it does not, it must be raised by answer, or the objection is waived.

2. APPEARANCE—WAIVER OF OBJECTIONS.

A shipper sued the initial and connecting carriers in a county in which the initial carrier had no road, nor office, nor agent. The attorney of the initial carrier, in a letter to the shipper, requested him to look to the connecting carrier, and stated that, if the shipper desired to join the initial carrier, no question of jurisdiction of the initial carrier would be raised. The initial carrier filed its answer, and participated in the trial to its conclusion. The action against the connecting carrier was dismissed. Held, that want of jurisdiction of the initial carrier was waived.

3. CARRIERS—DELAY IN TRANSPORTATION OF LIVE STOCK—INSTRUCTIONS.

An instruction, in an action for delay in transporting live stock, which limits the recovery to damages resulting from loss by shrinkage and loss of a better market, is not inconsistent with an instruction denying a right to recover for cattle injured in the transportation.

4. SAME—MEASURE OF DAMAGES—INSTRUCTION.

Where, in an action against a carrier for delay in transporting live stock, the right to recover was predicated on the fact that there had been an unreasonable delay, an instruction authorizing an award as damages of the difference in value between the value of the live stock in the condition that they were in when delivered and the value had they been delivered "without delay," was not objectionable for failing to admit the word "reasonable" before the words "without delay."

5. EVIDENCE — OPINION EVIDENCE — COMPETENCY OF WITNESS.

A person who had been engaged in the business of shipping cattle to a particular market for 15 years, and who saw a shipment of cattle sold at the market, and knew the condition of the stock when shipped and when they arrived at the market, was qualified to testify that, if the cattle had arrived in the morning of the day of their arrival, a better price would have been obtained, though he did not know the fluctuations of the market on that day.

6. CARRIERS—TRANSPORTATION OF LIVE STOCK —NOTICE OF CLAIM FOR DAMAGES—WAIVER OF DEFECT.

A bill of lading bound the shipper to give notice of a claim for damages verified by affidavit. At the request of the owner of a shipment of cattle, a third person made out a detailed statement of the loss and inclosed it in a letter to the carrier's claim agent. The statement was not sworn to. The letter informed the agent that the claim was made in behalf of the owner and at his request. The agent retained the statement without objection, and acted on it. Held, that the carrier was estopped from objecting to the sufficiency of the notice.

7. SAME — BILL OF LADING — CONSTRUCTION —CONNECTING CARRIERS.

Rev. St. 1899, § 5222, makes a carrier issuing a bill of lading for a through shipment liable for any loss to the shipment caused by its negligence or the negligence of any other carrier. A bill of lading bound the initial carrier to transport cattle to the point of destination, and stipulated that it should be liable only for damages occurring on its own line, and that it should not be responsible for the delivery of the cattle within any specified time nor for any particular market. Held, that the carrier was liable for delay occurring through the negligence of a connecting carrier.

8. SAME—DAMAGES.

A bill of lading stipulated that in consideration of a reduced rate, the shipper agreed that the carrier should not be liable for shrinkage caused by delay exceeding 20 pounds on each animal. There was no evidence that the cattle were shipped at a reduced rate. Held, that the recital in the bill of lading was insufficient to limit a recovery on account of shrinkage not to exceed 20 pounds on each animal.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by the Farmers' Bank of Laddonia against the Wabash Railroad Company and another. From a judgment for plaintiff against defendant St. Louis & Hannibal Railroad Company, it appeals. Affirmed.

J. D. Hostetter, for appellant. P. H. Cullen and W. H. Logan, for respondent.

BLAND, P. J.

The suit is to recover loss on account of shrinkage caused by unseasonable delay in transporting over defendant's road 212 head of fat cattle, delivered to it at Perry, Mo., by the plaintiff for carriage and delivery to the National Stockyards, at East St. Louis, Ill., and for loss of a better market. Defendant's road does not run to East St. Louis. It connects with the Wabash Railroad (which runs into East St. Louis) at Gilmore, Mo., and freight received by the defendant at Perry, consigned to East St. Louis, is hauled to Gilmore, and there delivered to the Wabash Railroad to be carried to its destination. This course was pursued with the shipment of cattle in question. The suit was brought against both the defendant and the Wabash Railroad Company. On the trial an instruction, in the nature of a demurrer to plaintiff's evidence, was sustained as to the Wabash Railroad Company, and the suit as to it was dismissed. It appears from the plaintiff's evidence that the cattle were loaded in 10 of defendant's cars at Perry, on Sunday, June 5, 1903, between 10 and 11 o'clock a. m., and were started for Gilmore between 12 and 1 o'clock on the same day. They arrived at Gilmore at 9 or 10 o'clock of that day and laid over there until after daylight the following Monday morning, when they were picked up by a Wabash train and carried to East St. Louis, arriving at the National Stockyards at 12:30 o'clock. On their arrival they were immediately unloaded into yards and sold before 2 o'clock—the hour then fixed for closing live stock sales for the day. The evidence tends to show that, ordinarily, and by the exercise of ordinary diligence, live stock loaded and shipped at Perry at the hour these cattle were loaded, should arrive at East St. Louis between 7 and 8 o'clock on the morning of the following day; and on account of the delay at Gilmore the cattle lost, by shrinkage, from 25 to 40 pounds in weight per head more than they would have lost had there been no delay. The evidence further tends to show that on account of the cattle arriving so near the hour of closing sales for the day, their sale had to be rushed and they brought a less price per one hundred pounds than they would have brought if they could have been put upon the market in the morning. The jury found the issues for the plaintiff and assessed his damages at $500. Defendant appealed to this court, after taking the usual steps to preserve its exceptions.

1. It appears from the evidence, and it is admitted, that the defendant railroad does not enter Audrain county (the county where the suit was brought and tried) and has no office, officer, or agent in said county; for these reasons, on the dismissal of the case against the Wabash Railroad Company, defendant moved the court to dismiss the suit against it for the want of jurisdiction of the person of the defendant. Want of jurisdiction of the person of a defendant, if it appears on the face of the petition, should be taken advantage of by demurrer; if it does not appear on the face of the petition, it should be raised by the answer; and if not taken advantage of either by demurrer or by answer, the objection is deemed to have been waived. But it is contended that the want of jurisdiction did not appear until the case was dismissed against the Wabash Railroad Company, and that the defendant did not know, and could not know, the Wabash Railroad Company was made a party defendant for the purpose of bringing the defendant within the jurisdiction of the court, and that the objection was raised at the earliest possible moment. Conceding this to be so, as jurisdiction of the person may be waived, the following letter of defendant's attorney, in answer to one written to him by plaintiff's attorney, we think clearly shows that jurisdiction of the Audrain circuit court over the person of the defendant was waived, in this particular suit, in advance of its commencement: "Bowling Green, Missouri, Nov. 4, 1904. Dear Sir and Friend: Your favor to hand relative to your proposed suit against the St. Louis & Hannibal & Wabash for Edgar Wilburn. I am aware of the outstanding claim and we have always contended that the delay was on the Wabash if at all, and as between the two companies, the Wabash is liable. I would like for you to look to the Wabash for your claim, but if you think you want to join our company as a defendant, I would just as soon have it at Mexico as anywhere and will raise no point on jurisdiction of our company. Yours, J. D. Hostetter." That Mr. Hostetter, as the attorney of the defendant, had authority to waive jurisdiction of the person of the defendant is settled by the case of Markey v. Railroad, 185 Mo. 348, 84 S. W. 61, and we think, too, that the appearance of the defendant by filing its answer and participating in the trial to its conclusion conferred jurisdiction on the court. Bankers' Life Ass'n v. Shelton, 84 Mo. App., loc. cit. 639, and cases cited. Parenthetically, it should be stated that Mr. Hostetter was not present at the trial of the case, did not participate in it, and the attorneys who appeared for the defendant were unaware of his letter until it was introduced in evidence.

2. There are two lines of testimony in the record in respect to the interest of the plaintiff bank in the cattle; one tends to prove that it purchased the cattle outright for the purpose of making a profit; the other tends to show that a Mr. Wilburn, a customer of the bank, purchased the cattle for himself on his own account, but not having...