Heil v. St. Louis

• Decision Date: 20 January 1885
• Citation: 16 Mo.App. 363
• Parties: JOSEPH HEIL ET AL., Respondents, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 363

JOSEPH HEIL ET AL., Respondents,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 20, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

H. G. HERBEL, and BENNETT PIKE, for the appellant.

D. C. HORNSBY, for the respondent.

ROMBAUER, J., delivered opinion of the court.

This is an action to recover damages occasioned to plaintiffs by defendant's negligence.

Plaintiffs averred in their petition that defendant was a common carrier of goods between the city of St. Louis, Missouri, and the city of Galveston, Texas. That on the 23d day of December, 1879, they delivered to defendant certain packages of apples, potatoes, and onions of the value of $701.81 which defendant as such carrier undertook to convey to Galveston, and deliver to plaintiffs' consignee. That by reason of defendant's negligence, delay, and want of proper care the goods were damaged on their delivery to the consignee to the amount of $514.96 for which amount plaintiffs ask judgment.

Defendant's answer admits the receipt of the goods, but claims that they were received under a special contract of transportation, by the terms of which they were to be conveyed by defendant to Texarkana, Arkansas, the terminal station of defendant's road, and were thence to be forwarded by defendant to plaintiffs' consignee in Galveston. Defendant claims that it had performed said contract.

Defendant's answer further claims that by said special contract plaintiff stipulated: To release defendant from damages caused by delays or change of weather. Not to hold it liable for any damage occurring on any other connecting railroad, and that in the event of the loss of the property the cost of the same at the point of shipment should govern the settlement.

Defendant claims that the damages were caused by an excessive change in the temperature while the goods were in transit.

To this answer plaintiffs replied by a general denial.

On the trial plaintiffs gave evidence tending to show that they delivered the articles in question in good sound condition to defendant in St. Louis, Missouri, on the 23d day of December, 1879, and that their consignee was notified of their arrival in Galveston, Texas, on the 5th day of January, 1880. That upon examination then made by the consignee it was found that the articles had been injured by frost. That the goods were properly packed in the cars by the shippers in St. Louis, with safeguards against frost, and could have been transported as packed in the then state of the weather, without any injury.

Plaintiffs also gave evidence tending to show that the cause of the injury was the displacement of the protection against frost, after the delivery of the goods to defendant, and before their delivery to plaintiffs' consignee.

Upon cross-examination of one of the plaintiff's witnesses it appeared that the goods were shipped under a bill of lading, delivered to plaintiffs at date of shipment,--but not signed by them.

There was testimony offered by plaintiffs tending to show the value of the goods at Galveston, in the condition in which they arrived, and also of the market value, at that time and place of such goods in a sound condition, but no evidence was offered by them tending to show, on what part of the route the alleged negligence in handling the goods occurred nor any evidence tending to show any unreasonable delay in the transportation of the goods from St. Louis to Galveston.

At the close of plaintiffs case the defendant demurred to the evidence by instruction, which the court refused.

The defendant thereupon introduced testimony tending to show the cost of the goods in St. Louis at the date of their shipment, the distance and direction of the route from St. Louis to Galveston, and the time ordinarily required for transporting freight that distance, which was from eight to ten days. Defendant also read in evidence the bill of lading issued to plaintiffs, which contains the conditions and exceptions, relied upon as a special contract in defendant's answer.

This being all the evidence the court, on plaintiffs request, instructed the jury in substance to the following effect:--

That the burden of proof was on defendant to show that the damages were caused by one of the causes excepted in its undertaking, and that the exceptions named were the proximate and sole cause of the loss, and that the damages were not occasioned by want of care, skill, or diligence on part of its employees, and that if the jury found that the goods were damaged by reason of the carelessness, delay, and negligence of the defendant in delivering them to the next carrier at the terminus of defendant's road, then the jury should find for plaintiffs.

Also that, “If the jury find for plaintiffs, the measure of damages is the market value at Galveston, at the time and in the condition, in which they ought to have been delivered, and the amount for which the goods were sold.”

The court refused to instruct the jury, on defendant's request, that the burden was upon plaintiffs to show that the damages were caused by negligence of defendant or its employees, while the goods were in transit over defendant's road. And also refused to instruct the jury, that plaintiffs were limited in their recovery to the reasonable market value of the goods in St. Louis at the date of their shipment, less what they sold for in Galveston, and less freight, paid with interest on balance at the rate of six per cent per annum.

There was a verdict for plaintiff for $424.20, which by remittitur was reduced to $353.

The errors complained of are. That the court refused to sustain defendant's demurrer to the evidence at the close of plaintiffs' case. That the court misinstructed the jury as to the burden of proof on the question of negligence. That the court misinstructed the jury on the question of damages, and that the damages are excessive.

The demurrer to the evidence was properly overruled. The action is not one ex contractu. If it were, the plaintiffs would have been required to set out the special contract in their petition. Clark v. Railway Co., 64 Mo. 446. The plaintiffs in their petition set out the facts out of which defendant's legal obligation arises, the obligation, the...