Fruit Growers Assn. v. St. L.S.F.R.R. Co., 5007.

• Decision Date: 04 February 1932
• Docket Number: No. 5007.,5007.
• Citation: 46 S.W.2d 895
• Parties: OZARK FRUIT GROWERS ASSOCIATION, A CORPORATION, PLAINTIFF IN ERROR. v. ST. LOUIS-SAN FRANCISCO R.R. CO. AND ATCHISON, TOPEKA AND SANTA FE R.R. CO., DEFENDANTS IN ERROR.
• Court: Missouri Court of Appeals

46 S.W.2d 895 OZARK FRUIT GROWERS ASSOCIATION, A CORPORATION, PLAINTIFF IN ERROR.
v.
ST. LOUIS-SAN FRANCISCO R.R. CO. AND ATCHISON, TOPEKA AND SANTA FE R.R. CO., DEFENDANTS IN ERROR. No. 5007. Springfield Court of Appeals. Missouri. February 4, 1932.

Writ of Error to Circuit Court of Jasper County. — Hon. R.H. Davis. Judge.

REVERSED AND REMANDED.

D.S. Mayhew for plaintiff in error.

(1) When the plaintiff in an action, under the Carmack Amendment, shows a delivery to the initial carrier of the merchandise in good condition and a bad or damaged condition when received by the consignee at the destination point from the terminal carrier, he has made a prima-facie case under the statute against initial carrier. Galveston H. & S.A. Ry. Co. v. Wallace, 223 U.S. 481, 56 Law Ed. 516, 32 Sup. Ct. Rep. 205; 1 Roberts' Federal Liabilities of Carriers (2 Ed.), sec. 384, p. 747; Railroad Commission of La. v. Texas & Pacific Railway Co. et al., 229 U.S. 336, 57 Law Ed. 1215; Conn v. Texas & N.O. Ry. Co., 43 S.W. (2d) 1004; Hurley et al. v. Illinois Central Ry. Co., 282 S.W. 97; Texas & N.O. Ry. v. Miller Bros., 22 S.W. (2d) 988; Cudahy Packing Co. v. Atchison, Topeka & Santa Fe Ry. Co., 193 Mo. App. 572. (2) Conversations over a telephone are admissible in evidence. (a) Though the voice of the party answering the call was not recognized. (b) When one is connected by telephone wire with a place of business of one with whom he desires to converse and is answered by some one assuming to be such person, it will be presumed that he is such person. Guest v. H. & St. J.R.R. Co., 77 Mo. App. 258; Publishing Co. v. Warehouse Co., 123 Mo. App. 13. One who places himself in connection with a telephone system through an instrument in his office, thereby invites communication in relation to his business through that channel and conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop, and the fact that the voice at the telephone was not identified does not render the conversation inadmissible. Wolfe v. Mo. Pac. Rv. Co., 97 Mo. 473: Meyet Milling Co. v. Strothfeld, 20 S.W. (2d) 963; Miller v. Phenix Fire Ins. Co., 9 S.W. (2d) 672.

Cyrus Crane, Geo. J. Mersereau and Mercer Arnold for defendant in error Santa Fe Ry. Co.

E.T. Miller and Mann, Mann & Miller for defendant in error Frisco Ry. Co.

Plaintiff in error in this case pleaded a specific act of negligence and, therefore, must prove the negligent act alleged; a party is bound by his pleadings. Plaintiff in error pleaded: "The defendants, through their agents and servants, were negligent, in this, to-wit: That they failed to deliver said berries in Topeka, Kansas, on a reasonable schedule time." Plaintiff failed to so prove and, having so failed, the peremptory instruction at the close of plaintiff's case was properly given. State ex...