Hammett & Katter v. Wabash R. Co.

• Decision Date: 06 January 1908
• Citation: 128 Mo. App. 1,106 S.W. 1106
• Court: Missouri Court of Appeals
• Parties: HAMMETT & KATTER v. WABASH R. CO.

106 S.W. 1106

128 Mo. A. 1

HAMMETT & KATTER v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

1. CARRIERS—LOSS OF GOODS—EXCUSE—BURDEN OF PROOF.

In an action against a carrier for loss of goods, where the plaintiff proves delivery to the carrier and nondelivery to the consignee, the burden is then upon the carrier to justify nondelivery.

2. EVIDENCE—WEIGHT AND SUFFICIENCY—UNCONTRADICTED EVIDENCE.

The court is not bound by evidence merely because there is no testimony directly contradicting it in the case, where it is inaccurate and somewhat contradictory in itself.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Hammett & Katter against the Wabash Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

H. F. Mallan, for appellant. C. E. Murrell and Campbell & Ellison, for respondents.

BROADDUS, P. J.

The facts of the case are as follows: The plaintiffs on June 4, 1903, at Kirksville, Mo., delivered to defendant two boxes of goods for shipment to Salem Kazzam, consignee, at Lexington, Mo. In about four weeks thereafter the consignee went to the station at Lexington and made demands for them, but they were not delivered to him for the reason that they had not then arrived at said station. The consignee then directed the defendant's agent, when the goods arrived, to reship them to Holden, Mo. The consignee afterwards received one of said boxes, but the other was never delivered. The plaintiffs contend that the lost box never reached Lexington, its destination. The goods were billed at Kirksville to Lexington Junction, and it was shown that they would not go further than Lexington Junction without rebilling. The defendant contends that the goods arrived at Lexington July 3d, and were reshipped to Holden July 13th. The defendant's evidence that the goods arrived at Lexington and were reshipped to Holden consists in the statements made by Mr. Loomis, the agent of the Missouri Pacific Railroad at that place. His testimony mostly consists of his recollection of what was shown by a waybill and other written entries made in the office of his company, which had been destroyed by fire, and from papers he received from his company relating to plaintiff's claim. In some instances he assumed certain facts. He had but little knowledge of the matter, and his statements were not altogether consistent. The court found for the plaintiff for the value of the goods alleged to have been lost, and d...