Ford v. Wabash Rv. Co

Decision Date13 July 1927
Docket NumberNo. 26261.,26261.
PartiesFORD v. WABASH RV. CO. et al.
CourtMissouri Supreme Court

Suit by Mrs. J. W. Ford against the Wabash Railway Company, the St. Louis Transfer Company, and others. Judgment for plaintiff in the circuit court against the St. Louis Transfer Company was reversed on appeal to the St. Louis Court of Appeals (266 S. W. 1032), and the cause was certified to the Supreme Court. Judgment of the circuit court affirmed.

Guy A. Thompson and Marvin E. Boisseau, both of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards and Anderson, Gilbert & Wolfort, all of St. Louis, for respondent.

HIGBEE, C.

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 $1,672.62, 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. 266 S. W. 1032. 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 23d day of August, 1918, plaintiff became and was a first-class passenger on a train of the Wabash Railway Company at Chicago, Ill., operated by the Director General of Railroads, and thereby became entitled to transportation from Chicago, Ill., to St. Louis, Mo., 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 $1,448.38. 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 $1,448.38, 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 any of them were damaged, said damage was not sustained while the goods and chattels were in the possession or control of this defendant, but while in the possession of one of the other defendants herein.

(3) That, if said goods and chattels were damaged as averred in plaintiff's petition, such damage was sustained on the 24th day of August, 1918, and was the result of an act of God, in that on said 24th day of August, 1918, between 11 a. m. and noon of said day there was an unexpected cloudburst of such volume that the sewers and the natural drainage of the streets and soil of the city of St. Louis could not carry water away as rapidly as it fell, and the station grounds, platforms, and baggage rooms and premises of the defendant Terminal Railroad Association of St. Louis became flooded and submerged, and that, if the property mentioned by the plaintiff in her petition was damaged, such damage was caused solely by said vis major or act of God.

The reply was a general denial. At the trial, judgment was rendered in favor of all the defendants except the St. Louis Transfer Company, against whom the plaintiff prevailed, and defendant has brought the case to this court on appeal.

The facts are very simple. The plaintiff and her husband both testified in effect that in the summer of 1918, they were living at 5933 Clemens avenue, in St. Louis, Mo.; that they went to Mackinaw Island for a summer vacation, staying there three or four weeks, and returned to St. Louis by way of Chicago. On the evening of August 23, 1918, they left Chicago for St. Louis, and ha d five trunks and two golf bags; the trunks containing all of their clothing, hats, and personal wearing apparel. They arrived in St. Louis on the morning of August 24, 1918, coming to St. Louis by way of the Wabash Railroad.

Before leaving Mackinaw Island, they had checked their trunks from there to Chicago, and at Chicago they rechecked their trunks on the Wabash Railway to St. Louis. Mr. Ford looked after the rechecking of the trunks. After their arrival in St. Louis, they walked home from the Delmar Avenue Station, and about 10 o'clock that morning Mr. Word went down town. On the way to town he left his baggage checks with an agent of the St. Louis Transfer Company at the Union Station, and directed him to deliver the baggage to his residence. He paid to the St. Louis Transfer Company whatever the charges were for the delivery of this baggage. Three of the trunks were delivered that same evening; the other two being delivered early Monday morning, August 26th.

When the trunks were delivered at plaintiff's residence, they were opened, and it was found that the contents were water-soaked, and, according to the testimony of the plaintiff, entirely destroyed. Mrs. Ford estimated the damage to her trunks and the contents thereof at the sum alleged in the petition, and the damage to Mr. Ford's wearing apparel in the trunks was also estimated at the amount alleged in the petition. There was further testimony to the effect that letters had been written by the St. Louis Transfer Company stating that these goods had become water-soaked while on their platform at the Union Station, as a result of a rainfall which flooded the entire premises about noon of August 24th. There was also testimony that Mr. Ford had assigned whatever cause of action he may have had as a result of damage to his property to his wife, the plaintiff herein. After this showing, the plaintiff rested, and instructions in the nature of demurrers to the evidence were presented by all the defendants, which instructions the court refused to give.

On the 24th day of August, 1918, at 11:20 a. m., there was a violent rainstorm all over the city of St. Louis, and particularly in the vicinity of the Union Station. So violent was the storm that the water ran from Market street through the main entrance of the Union Station, through the concourse, barber shop, bank, and hotel, onto the midway, and then continued south across the railroad tracks and baggage room. There were at that time one or more employees of the St. Louis Transfer Company in their office and about the platform. Within a few minutes after the rain started the water came flowing down across the tracks and across the baggage platform, and in about 15 minutes rose to a depth of 14 or 15 inches on the platform occupied by the St. Louis Transfer Company where the plaintiff's baggage was at that time. The rain lasted for about one hour, and the first intimation that any employees of the St. Louis Transfer Company had that there was any danger from the water was when it came flowing across the platform occupied by them. They thereupon began to search about for trucks or something else upon which they could place the trunks on their platform so as to get them out of the water.

When the rain began to fall, the Terminal Railroad Association became anxious about their baggage, most of which was in the subway. Mr. O'Toole, their general agent, went to the subway when it began to look as though there would be a heavy rain and ordered the United States mail bags and other baggage down in the subway to be elevated to the track level. The Terminal Railroad Association had a number of trucks which were 3 or 3½ feet in height, and the baggage was all placed on these trucks and brought up to the platform above described and left standing on the trucks. At the same time what other trunks were on the platform were placed on the trucks which they...

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