Hartford Fire Ins. Co. v. Payne

• Decision Date: 22 May 1922
• Docket Number: No. 14165.,14165.
• Citation: 243 S.W. 357
• Parties: HARTFORD FIRE INS. CO. v. PAYNE, Agent.
• Court: Missouri Court of Appeals

243 S.W. 357

HARTFORD FIRE INS. CO. v. PAYNE, Agent.

No. 14165.

Kansas City Court of Appeals. Missouri.

May 22, 1922.

On Motions for Rehearing and to Transfer, July 3, 1922.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

"Not to be officially published."

Action by the Hartford Fire Insurance Company against John Barton Payne, Agent, etc. From judgment for plaintiff, defendant appeals. Reversed and remanded.

J. R. Green, of St. Louis, W. H. Meschede, of Marshall, and Frank W. McAllister, of Kansas City, for appellant.

C. G. Myers, of Chicago, Ill., and Albert R. James, of Marshall, for respondent.

TRIMBLE, P. J.

An insurance company subrogated to, and assignee of, the rights of a shipper holding plaintiff's live stock transit policy covering insurance on a shipment of hogs, sues to recover the amount paid by it under said policy for a loss on said shipment during transportation for which it is alleged the defendant carrier is responsible. There is no question as to the capacity or right of plaintiff to sue; the controversy being over whether the carrier is liable for the loss and over alleged errors at the trial.

The shipment was of 73 "reasonably fat, not very fat," hogs by W. 0. Van Arsdell on September 30, 1919, over the Missouri Pacific Railroad (then under the control of and being operated by the government), from Naptonville, Mo., to National Stockyards, East St. Louis, Ill., consigned to Milton-Marshall Live Stock Commission Company.

The hogs were brought from Van Arsdell's farm, a distance of seven miles, and placed in the pens at Naptonville about 7 or 8 o'clock in the morning. They had been reared by him on his farm and were in excellent health. Between 3 and 4 o'clock in the afternoon they were loaded into the car. While in the pens and until they were loaded into the car Van Arsdell looked after and cared for the hogs, watered them when necessary, and with the help of the station agent they were placed in the car. It had rained the night before, and the ground of the pens was wet. The hogs, when loaded, were, according to plaintiff's evidence, "nice healthy hogs," in good condition, and not warm. They were over a year old, averaged 240 pounds in weight, and the car was a good one. It was a "right warm day." Plaintiff could not say how high the thermometer was, whether it was as high as 90 degrees or not, but there was humidity in the air on account of the rain the night before.

The train that was to carry these hogs was scheduled to leave Naptonville at 2:20 p. m. but, being late, did not leave until about 4:40 p. m. The usual time to transport hogs from Naptonville to National Stockyards and get them on the market was from 14 to 16 hours. The train arrived at the cattle landing of the stockyards about 11 o'clock a: m. the next clay, but did not get around to the hog chute where they were to be unloaded until shortly after the noon hour. From the time they started until they arrived at the cattle landing, the hogs were in transit 18 hours and 20 minutes, and after they started until they were unloaded they were in the cars 20 hours, or 21 hours counting from the time they were put in the cars. They were therefore in transit from 4 to 3 hours longer than usual. When they were unloaded, 20 of them were found to be dead. It was admitted that these hogs, if alive at the stockyards, would have been worth $780.45, and that their carcasses were worth $130.08; consequently the lass to the shipper was the difference, or $650.37. This amount was paid by plaintiff, under its policy, to the shipper on the _____ day of October, 1919, and on the 17th of October, 1919, the insurance company filed claim with defendant together with proof of loss, but payment thereof was refused.

Plaintiff went to the jury on the second count of its petition, which rested the cause of action upon the violation of the defendant's common-law duty to safely carry and deliver said shipment. The defendant answered, admitting the shipment and insurance, and that plaintiff had paid the shipper "for the loss he may have sustained by reason of the death of any such hogs," but denied each and every other allegation in said count contained. For further answer the defendant set up that the death of the hogs "was not due to the failure of the plaintiff (defendant) to discharge any duty he owed the shipper W. O. Van Arsdell, but to natural and inherent causes, to wit, congestion and diseases of the lungs." The reply to this was a general denial.

The defendant demurred both at the close of plaintiff's evidence and at the close of the entire case, but was overruled, and the case was sent to the jury. It returned a verdict for plaintiff assessing its "damages at $650.37 with interest thereon at 8 per cent. per annum from the 17th day of October, 1919, to date (February 1, 1921), amounting to $50.40, making a total of $700.77." Judgment being rendered thereon, the defendant appealed.

In addition to the facts already stated as having been shown in plaintiff's behalf, evidence of the following further facts was introduced;

It was shown by a number of experienced shippers that a loss of 20 hogs out of a shipment of 73 shipped during the months of September and October, when the weather was warm, was a very unusual loss; also that the day they were delivered by the carrier at destination was "very hot"; that it is very injurious to allow a carload of hogs to stand in the terminals under the heat of the sun, or to leave it standing still between buildings where the air is cut off, as under such conditions they will suffocate; but that while the train is moving they will get air.

Defendant introduced the conductor who had charge of the train until it reached Jefferson City, lie testified, not from his personal recollection, but from the train records made at the time, that the hogs were drenched upon their arrival Jefferson City at 8:55; that drenching is done on a hot day; that his records showed no rough handling, but he did not record every sudden stopping or starting of the train. The conductor who took the train from Jefferson City to the Eleventh Street terminal in the city of St. Louis, Mo., testified that his records showed that the train was "drenched in the usual and customary manner" at Chamois at 2 a. m. on the morning of October 1, said point being about 100 miles from St. Louis; that his records showed no rough handling of the train, merely an ordinary run; that he did not personally observe the drenching of every car nor of any particular car, nor did he record every or any sudden starting or stopping of the train; that the train was scheduled to arrive at the Eleventh Street terminal in St. Louis, Mo., at 5:40 a. m. and got there at 6:40 a. m. when his connection with and care of the train ceased. The hogs were then still 5 miles from their destination.

Defendant's car accountant testified from the "wheel reports" that the train was delivered to the Terminal Railroad Association at the Eleventh street track at 7:35 a. m.; that it usually took from one to three hours to go from the Eleventh street track terminal to the stockyards in East St. Louis, III. referring back to the time when the train arrived at destination, it will be observed that it did not get to the cattle landing of the stockyards until 11:40 and to the unloading hog chute where they were unloaded until after the noon hour. So that 4 hours and 50 minutes were consumed between the arrival of the train at the Eleventh Street terminal and its arrival at the cattle landing of the stockyards, and that the car of hogs stood in the Eleventh Street terminal practically an hour, and, counting the time until the hogs were unloaded, the time elapsing between the hogs' arrival at the `Eleventh Street terminal and their arrival at the unloading chute was nearer six hours. There is no evidence introduced by defendant covering the transportation of the hogs between these two points nor during this time when; they were either in the Eleventh Street terminal or on their way through the city to the stockyards.

Dr. Myers, the veterinarian at the National Stockyards, testified for the defendant that he held a post mortem on each of the 20 hogs; that he found in all of them an acute congestion of the lungs; they were black and gorged with blood, and the mucous membranes of the mouths and eyelids were bluish colored; that congestion of the lungs in a hog is usually due to overheating or exertion and, is also present in all acute pulmonary affections or diseases. Under an hypothetical question covering the case as disclosed by defendant's evidence he gave it as his opinion that the death of the hogs was due to "their inherent condition of having poorly developed lungs, and their fat condition makes them susceptible to exertion or overheating, and that fat healthy hogs shipped a considerable distance...