Gray v. Wabash Railway Company

• Decision Date: 09 November 1925
• Citation: 277 S.W. 64,220 Mo.App. 773
• Parties: CHANT GRAY AND S. P. HENDERSON, RESPONDENTS, v. WABASH RAILWAY COMPANY, APPELLANT
• Court: Kansas Court of Appeals

277 S.W. 64

220 Mo.App. 773

CHANT GRAY AND S. P. HENDERSON, RESPONDENTS, v. WABASH RAILWAY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

November 9, 1925

Appeal from the Circuit Court of Adair County.--Hon. James A Cooley, Judge.

AFFIRMED (conditionally).

M. D Campbell and John M. Campbell for respondent.

Homer Hall and Higbee & Mills for appellant.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.--

This is an action for loss of profits and for expenses suffered by plaintiffs on account of the failure of defendant to transport a merry-go-round in the time agreed. Plaintiffs recovered a verdict and judgment in the sum of $ 500 and defendant has appealed.

The facts show that about August 5, 1924, plaintiff, Gray, went to defendant's agent, Warden, at Kirksville and requested a baggage car to transport a merry-go-round except the center pole, from Glenwood, a town twenty-five miles distant from Kirksville, to the latter point on Sunday, August 31st. He asked for a baggage car because he understood that on Sunday there was no freight train running which would take his shipment. Gray told the agent that he wanted the swing brought to Kirksville on Sunday for the reason that he would be required to put it up Sunday evening as it would take from eight to ten hours to unload it and set it up; that he wanted it ready to run on Monday morning at a Labor Day picnic near Kirksville, and had to have it ready early on that day.

Defendant had three trains running from Glenwood to Kirksville; No. 20 a passenger train, No. 96 a through freight that did not usually pick up freight at Glenwood, and No. 68, an extra train running when the amount of freight justified it. No. 96 or the through freight would pick up freight at Glenwood only on an order to do so by the officers of the company at Moberly. Warden told Gray that the charges for transporting the merry-go-round would be $ 30. Warden told Gray that he did not think the passenger train would take the car but that "they would get it here on train No. 68, an extra, but if not, train No. 96 would sure bring it." Warden stated that he would write to Mr. Buchanan, defendant's division freight and passenger agent at Moberly, about the shipment. Warden testified that he communicated with Buchanan in reference to the shipment. On August 7, 1924, Gray received a letter from Buchanan stating that he had received a letter from Warden in reference to the transportation of the merry-go-round on a passenger train on Sunday, August 31st, saying, I "regret to advise you that we will be unable to furnish a baggage car for this movement but if you so desire we will provide a box car in lieu thereof, and handle same on some convenient freight train at passenger tariff rates, providing you desire this service and will advise us to that effect sufficiently in advance to permit us to make necessary arrangements."

After receipt of the letter from Buchanan, Gray again talked with Warden on two occasions in reference to the shipment and each time mentioned that the swing must be moved on the 31st of August, and was advised by Warden that one of the trains of that day would move it. Warden told him that when the latter went to Glenwood he had better see the agent there the forepart of the week to be sure that the car would be ordered to be set on Saturday. This, Gray did. He saw the agent at Glenwood on Tuesday and mentioned to him the letter from Buchanan and the agent there said, "he knew about it and the car was already there." Gray was at Kirksville on Sunday the 31st and waited there all day with some trucks and men to handle the merry-go-round but it did not arrive. No. 68 did not run and No. 96 did not stop at Kirksville on that day. There was evidence tending to show that another car of freight located on the same track next to the car containing the merry-go-round was picked up on the 31st by No. 96. The car containing the merry-go-round arrived at Kirksville between eleven and twelve o'clock on the morning of September 1st, too late to be set up for the picnic.

Mrs. Gray testified that she, in company with her brother-in-law, saw Mr. Warden at defendant's office in Kirksville after the receipt of the letter from Buchanan. Warden at that time told her that No. 96 would be sure to bring the merry-go-round to Kirksville on the 31st. He told Mrs. Gray to order the car in plenty of time. She informed him that if they could not get the swing to Kirksville in time that they would take it to Axline. Plaintiff, Henderson, testified that he told Warden on the 5th of August that the swing had to be in Kirksville on the 31st or they could not set it up for the picnic and that Warden said it would be sure to be there at that time. Henderson further testified that he loaded the merry-go-round on Saturday night and early Sunday morning. About six o'clock Sunday morning Mrs. Gray told the agent at Glenwood that the car was loaded and ready to go.

Warden testified that he knew the purpose for which plaintiffs wanted the merry-go-round delivered at Kirksville; that he did not tell plaintiffs that No. 96 would bring it but that he would "try to get it here on some convenient train;" that he told Gray No. 96 did not carry local freight but that "we would do what we could to get them to do it."

The petition alleges that the merry-go-round was at the station at Glenwood on the 31st of August; that defendant entered into an agreement that it would transport the merry-go-round to Kirksville for which plaintiffs agreed and did pay the sum of $ 30; that--

". . . thereupon defendant furnished a car at its said station at Glenwood and said merry-go-round was by plaintiffs loaded therein, about five o'clock A. M. on the 31st day of August, 1924; that at the time defendant furnished said car, and at the time plaintiffs paid said charge of thirty ($ 30) dollars, the defendant agreed and promised that said merry-go-round would be, by it, delivered to plaintiffs at Kirksville, either by one of its trains due to arrive in Kirksville on the afternoon of August 31, 1924, or upon its regular train No. 96, which train passed through defendant's said station at Glenwood and arrived at defendant's station at Kirksville about seven o'clock P. M. on said August 31, 1924."

It is claimed that plaintiffs failed to sustain the allegations of their petition for the reason there is no evidence of any agreement made by the agent at Glenwood whereas the petition alleges the agreement was made by that agent. The petition does not allege directly that the contract was made by the agent at Glenwood but merely pleads the legal effect of what was done by Warden, Buchanan and said agent. Buchanan made the contract with plaintiffs through Warden and the Glenwood agent and its making was consummated when the charges were paid and the shipment accepted by the agent at Glenwood. There is nothing in the contention.

It is insisted that the court erred in refusing to sustain defendant's demurrer to the evidence, for the reason that defendant's station agent at Kirksville could not change the policy of the company by compelling a through train to handle a local shipment originating at Glenwood; that if any station agent had this right, it was the agent at Glenwood and there is no evidence of any contract with that agent. The facts show that the conversation in regard to the shipment was had with the agent at Kirksville and plaintiffs do not contend that he had authority to make the contract in the absence of the peculiar circumstances of this case. After the agent at Kirksville wrote to Buchanan, an agent of the defendant who it is undisputed had the right to make the contract, Buchanan wrote a letter to Gray which, undoubtedly authorized Warden and the Glenwood agent to complete the contract which Buchanan offered to make. Buchanan's letter shows that he understood that the shipment must go forward on Sunday, August 31st, and that in view of the fact that a...