ford v. Wabash Railway Company
| Decision Date | 12 December 1927 |
| Docket Number | 26261 |
| Parties | Mrs. J. W. Ford v. Wabash Railway Company et al.; St. Louis Transfer Company, Appellant |
| Court | Missouri Supreme Court |
Rehearing Granted, Reported at 318 Mo. 723 at 739.
Transferred from St. Louis Court of Appeals.
Affirmed.
Guy A. Thompson and Marvin E. Boisseau for appellant.
(1) The court erred in refusing to give appellant's instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's evidence and at the close of the whole case. (a) The damage was caused by an act of God. 4 R C. L. 713; Fentimann v. Ry. Co., 44 Tex. Civ. App 455; Pearce v. The Thomas Newton, 41 F. 106; Norris v. Savannah Ry. Co., 23 Fla. 182; Creamery Co. v. Railroad, 139 Mo.App. 149; Shoe Co. v. Railroad, 147 Mo.App. 489; Lamar Mfg. Co. v. Railroad, 117 Mo.App. 453; Ib., 131 Mo.App. 115; Lightfoot v. Railroad, 126 Mo.App. 532; Grier v. Railroad, 108 Mo.App. 565; Empire State Cattle Co. v. Railroad, 135 F. 135; Railway Co. v. Kellogg, 94 U.S. 24; Hoog v. Railroad, 85 Pa. 293; Rogers v. Railroad, 75 Kan. 422. (b) There was a failure of proof -- the plaintiff cannot sue on one cause of action and recover on another. Meade v. Railroad, 183 Mo.App. 353; Lamy Mfg. Co. v. Mo. Pac. Ry. Co., 181 S.W. 131; Cudahy Packing Co. v. Ry. Co., 196 Mo.App. 531; Werinck v. Railway Co., 131 Mo.App. 37; Dalton v. Railroad, 187 Mo.App. 696; 1 Mitchie on Carriers, secs. 1041, 1055; 10 C. J. 364; 3 Ency. Pl. & Pr. 849, 822; Vail v. Strong, 10 Vt. 457; Ingwerson v. Railroad, 205 Mo. 336. The St. Louis Transfer Company was neither a connecting nor a successive carrier. 2 Moore on Carriers (2 Ed.) 728; 4 Mitchie on Carriers, sec. 3596; Nansen v. Jacob, 93 Mo. 331. (2) The court erred in its instructions to the jury. The charge was incomplete and inconsistent. Authorities, supra; Davis v. Wabash Ry. Co., 89 Mo. 340; Reems v. Railroad, 10 Wall. 189; Reod v. Railroad, 60 Mo. 206. Interest is not allowable in this kind of action. DeSteiger v. Hannibal Ry. Co., 73 Mo. 33; Wade v. Mo. Pac. Ry. Co., 78 Mo. 362; Kimes v. Railway Co., 85 Mo. 611; State v. Harrington, 44 Mo.App. 297; Jordan v. Railway Co., 206 Mo.App. 56; Austin v. Ransdell, 207 Mo.App. 77; Hartford Fire Ins. Co. v. Payne, 243 S.W. 357; Jacobs v. Rys. Co., 231 S.W. 1023; New York Ry. Co. v. Estill, 147 U.S. 591. (3) The court erred in excluding evidence that plaintiff's loss had been paid by the St. Paul Fire & Marine Insurance Company. Swift & Co. v. Railroad, 149 Mo.App. 526; Hartford Fire Ins. Co. v. Wabash, 74 Mo.App. 106.
Abbott, Fauntleroy, Cullen & Edwards and Anderson, Gilbert & Wolfort for respondent.
(1) No assignment of error by appellant is material, because on the record respondent was entitled to a directed verdict against appellant. Philips v. Pulitzer Pub. Co., 238 S.W. 127; Brigham City Assn. v. Produce Co., 220 S.W. 920; Traynor v. Mining Co., 243 Mo. 359; Potes v. Pyle, 202 S.W. 446. The burden was upon appellant to prove that an act of God did the damage. Cunningham v. Railroad, 167 Mo.App. 282. An act of God is no defense if it concurs with the negligence of defendant to produce the injury. Willi v. Ry. Co., 205 Mo.App. 84. And this burden defendant did not sustain. At best, it showed by oral evidence (which the jury was not bound to believe, Gannon case, 145 Mo. 502) a large volume of water which came up several inches on the trunks for three or four minutes before the trunks were elevated to trucks, but no evidence was offered that this was the sole cause of the damage. (2) The court committed no error in excluding the offer of proof that the insurance company had paid plaintiff or her husband anything. If there was any assignment the assignment was the best evidence, and oral testimany was not competent. Even if the loss had been paid by the insurance company, that would not extinguish the claim against the defendant. No offer of the contents of the policy was made. Suit may be maintained by the party in whose name the agreement was made, although in fact for the benefit of someone else. Stripling v. Maguire, 108 Mo.App. 602. (3) As the testimony went in without objection that the Transfer Company received the baggage in St. Louis for delivery to plaintiff's house, the case will not be reversed even though not correctly alleged in the petition, but will be treated as though the allegations in the petition corresponded to the proof. Secs. 1276, 1550, R. S. 1919; Tebeau v. Ridge, 261 Mo. 559; Sawyer v. Railway, 156 Mo. 476; Winn v. Railroad, 245 Mo. 412; Cook v. Kerr, 192 S.W. 468; State ex rel. Smith v. Trimble, 315 Mo. 173. (4) Interest is allowable for damage to goods in shipment. Goodwin v. Railway, 71 Mo.App. 460; Gray v. Packet Co., 64 Mo. 50; Dunn v. Railroad, 68 Mo. 278; Humphreys v. Railway, 191 Mo.App. 722. (5) As the burden was on defendant to prove act of God, and it sought to prove this by oral testimony, the credibility of these witnesses was for the jury. They may not have believed them. (6) The evidence shows the act of God did not produce the damage. The trunks were not delivered for a long time after the water got in them -- some that night and some next day. Defendant's testimony showed only a few inches got wet -- yet when they reached Ford's all the contents were wet. No evidence was offered by defendant to show that all this damage was caused by the water running over the platform. Water a few inches high could not saturate clear to the top, unless the trunks were turned over and over and permitted to remain with the water in them a long time. A phone message to plaintiff to come and open the trunks or a speedy delivery without turning them upside down or on end would undoubtedly have practically if not entirely eliminated the damage. Defendant with all the power of proof in its profession produced not a bit of proof that the rain and not its negligence did the damage. The water had only been there three or four minutes when the trunks were picked out of the water.
On a trial of this cause in the Circuit Court of the City of St. Louis on October 5, 1922, the jury found a verdict for the plaintiff on both counts of plaintiff's amended petition, with interest, in the total sum of $ 1672.62, against the St. Louis Transfer Company, but found for the other defendants, and from a judgment thereon the St. Louis Transfer Company appealed to the St. Louis Court of Appeals where the judgment was reversed. Judge Allen dissented on the ground that the decision was contrary to decisions of this court, and at his request the cause was certified to this court for final determination. We adopt, in part, appellant's statement in the Court of Appeals, making a few slight changes.
This suit was instituted on November 16, 1918, by the plaintiff for the purpose of recovering from defendants damages alleged to have been caused to certain property while in their possession. Her amended petition is in two counts. The first count, after alleging certain formal matters with reference to the capacity in which defendants are being sued, states that on or about the 23rd day of August, 1918, plaintiff became and was a first-class passenger on a train of the Wabash Railway Company at Chicago, Illinois, operated by the Director General of Railroads, and thereby became entitled to transportation from Chicago, Illinois, to St. Louis, Missouri, over the lines of the Wabash Railway Company and the Terminal Railroad Association of St. Louis; that as such passenger she delivered, in good order and condition, to the defendants, for transportation from Chicago to her residence in St. Louis, her baggage, goods and chattels, which were itemized in her petition and which had the value set opposite each item, amounting to a total of $ 1448.38. The petition then alleges that the defendants undertook and agreed, for value received, as successive carriers, to transport said goods promptly and to deliver them in as good condition as they were in at the time they were delivered to the defendants for transportation, and that it was the duty of said defendants under the law so to transport and deliver the same; that in violation of their contract and undertaking and their duty in that behalf, the defendants negligently and carelessly transported and delivered said goods so that when they were received by the plaintiff on the 25th day of August, 1918, they were wholly destroyed and of no value whatever. The petition also alleges that these articles were all the necessary baggage and wearing apparel of the plaintiff, of the total value of $ 1448.38; that she demanded payment of the defendants of this sum on November 16, 1918, and at other times, and judgment is asked against the defendants for that sum.
The second count makes the same allegations as the first count except that the damage is therein alleged to have been done to the property of plaintiff's husband, J. W. Ford, under exactly the same circumstances, said damage amounting to the sum of $ 195. This count also alleges an assignment by J. W. Ford of his cause of action or claim on account of the damage to these goods to the plaintiff and judgment is prayed against the defendants on this count for the sum of $ 195, together with interest thereon since November 16, 1918.
The answer of the defendant, St. Louis Transfer Company, to each count of the plaintiff's petition, consists of a general denial, together with the following affirmative defenses:
1. That this action was not instituted and is not being prosecuted in the name of the real party in interest; that the real party in interest is the St. Paul Fire & Marine Insurance Company.
2. That if the goods and chattels itemized in the plaintiff's petition, or...
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ford v. Wabash Railway Company
...v. Wabash Railway Company et al.; St. Louis Transfer Company, Appellant No. 26261Supreme Court of MissouriDecember 12, 1927 Reported at 318 Mo. 723 at 739. Opinion of December 12, 1927, Reported at 318 Mo. 723. Higbee, C. Blair and Walker, JJ., concur; White, P. J., absent. OPINION HIGBEE O......