Griggs v. St. Louis & H.R. Co.

• Decision Date: 01 June 1926
• Docket Number: No. 19319.,19319.
• Citation: 285 S.W. 159
• Parties: GRIGGS v. ST. LOUIS & H. R. Co.
• Court: Missouri Court of Appeals

285 S.W. 159

GRIGGS v. ST. LOUIS & H. R. Co.

No. 19319.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Appeal from Circuit Court, Rails County; C. T. Hays, Judge.

"Not to be officially published."

Action by N. J. Griggs against the St. Louis & Hannibal Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Drake Watson, of New London, and Hostetter & Haley, of Bowling Green, for appellant.

Joseph F. Barry and Onie D. Newlon, both of New London, for respondent.

DAUES, P. J.

This is an action for damages growing out of the shipment of 91 hogs by plaintiff from Rails county, Mo., over the defendant railroad to a commission firm in East St. Louis, Ill. Verdict and judgment for plaintiff for $330.90; defendant appeals.

The petition charges that plaintiff delivered to defendant at its station at Owendale, Rails county, Mo., 91 hogs, in good condition, for shipment to the National Stockyards in Illinois; that defendant as a common carrier received the hogs for such shipment and undertook and agreed to transport same to the point of destination, and to deliver same to the stock commission association as consignee, all in consideration of the proper freight charges, which plaintiff paid. It is alleged that defendant failed to deliver the hogs at the stockyards in good condition; that 15 of same were dead when delivered. The petition prays damages for the loss of the hogs that had died in transit, for loss of weight to the live hogs, it being alleged that the shipment was delayed, and also for the loss in a drop in market prices. However, the jury found for plaintiff solely on the complaint that 15 hogs were not delivered in good condition, being those that were delivered dead. The answer is a general denial only, and this becomes of consequence.

There is evidence tending to show that plaintiff, as manager of the Rails County Shipping Association, notified the regular station agent at Center, Mo., that he wanted a car for the shipment of hogs to East St. Louis, Ill., to the consignee named. The car was furnished, and the hogs were loaded into same in good sound condition, and the defendant undertook to transport as agreed. No written contract was entered into between the parties, the contract being simply as recited above. The car was sealed, and the shipment was then in the hands of defendant. Plaintiff testified that no one accompanied the shipment for him, while appellant makes the statement that plaintiff's son admitted that he went with the shipment, though the supplemental abstract of respondent, which gives the testimony of this witness in full, dispels such interpretation. The evidence, then, is that no one accompanied the shipment for plaintiff or the actual owners of the hogs.

It was shown that the car left Owendale, Mo., about 11 o'clock a. m., September 3, 1925, and did not arrive at the National Stockyards in Illinois until about 12:30 o'clock p m., September 4, 1925. Fifteen of the hogs were found to be dead, and the live hogs were there unloaded and sold on the market. The jury returned a verdict, as already said, for the loss of the 15 hogs; the other items for delay in delivery of the live hogs were found in favor of defendant.

Appellant's assignments of error are, first, that the court erred in refusing defendant's demurrer to the evidence;, and, second, that the court erred in giving plaintiff's instruction No. 1, the only instruction given.

Arguing the first proposition, counsel say that whether the petition be considered as stating a cause of action on the commonlaw liability of the carrier as insurer, or whether it is for unreasonable or negligent delay, that in either event the negligent delay, since it was pleaded, must be shown and proved by the plaintiff, and that there is no such showing, nor a showing that the delay caused the death of the hogs. In their brief, appellant's counsel concede that the petition may be sufficient as charging common-law liability as insurer, and so we view the petition. The petition undoubtedly states a cause of action based upon the commonlaw liability of the carrier as an insurer. Collins v. Railway Co., 181 Mo. App. 213, 167 S. W. 1178; Sullivan v. Am. Ry. Exp. Co., 211 Mo. App. 123, 245 S. W. 375, and cases cited. No negligence is charged. The allegations are that the hogs were delivered in good condition, accepted by the company and the regular freight paid, and that when delivered by the carrier 15 of the hogs were dead. In reciting the facts and circumstances of the shipment, it was stated that there was a delay. No recovery was sought on the ground of negligent delay, and certainly none was had on any such theory. The theory of recovery was clearly that of liability under the common law as insurer.

The proof all comes from the side of plaintiff. Defendant simply filed a general denial and produced no evidence whatsoever, standing upon a general demurrer, and thereupon plaintiff offered one instruction, which was...