Hendrix v. Wabash R. Co.

• Decision Date: 26 April 1904
• Citation: 107 Mo. App. 127,80 S.W. 970
• Court: Missouri Court of Appeals
• Parties: HENDRIX v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 970

107 Mo. App. 127

HENDRIX v. WABASH R. CO.^*

St. Louis Court of Appeals. Missouri.

April 26, 1904.

JURISDICTION — CHANGE OF VENUE — CALLING IN JUDGE FROM ANOTHER CIRCUIT — CARRIERS — EXEMPTION FROM LIABILITY — BREACH OF CONTRACT — INJURIES TO LIVE STOCK — EVIDENCE — MEASURE OF DAMAGES.

1. The successor of a circuit judge who died pending a motion for a new trial was disqualified, and, under Rev. St. 1899, § 1678, requested the judge of another circuit to sit in the case, and pass upon the motion for a new trial, and otherwise act as judge in the cause. Pursuant to this request, this judge appeared, and took the motion under advisement, announcing that he would pass upon the same at the next term. Before this time the disqualified judge resigned, and a successor was appointed who was not disqualified. The judge who had been asked to hear the motion then refused to proceed further. Held, that it was proper to vacate the order transferring the cause to this judge, and for the judge in the circuit where the case was tried to pass on the motion, inasmuch as there had been no change of venue.

2. Where a contract partially exempting a railroad from liability for injury to goods shipped was made in consideration of a reduced rate, but the company charged a rate in excess of that stipulated in the contract, it was not entitled to insist upon its exemption from liability.

3. A railroad company contracted to carry stock from stockyards to a certain city for an agreed price, and engaged a "terminal company to transport the stock from the stockyards to the beginning of the carrier's road. The terminal company loaded the stock in an improper car, and the carrier sent them back to be reloaded, paying extra for the extra trip. Held, that the shipper was not liable for this extra expense, so that the exaction of it by the railroad was a breach of its contract.

4. In an action against a railroad company for delay in shipping cattle, plaintiff was entitled to recover what he paid for extra feed because of the delay, and the difference between the value of the cattle in the condition they were in when delivered, and the condition they would have been in had the delay not occurred.

5. In an action against a railroad company for delaying a shipment of cattle, it appeared that the cattle were "feeders" bought for resale; and plaintiff, who was an experienced cattleman, testified that when they arrived they looked gaunt, had lost 30 or 35 pounds more in weight than they would have, had they not been delayed, and were not in a salable condition when they arrived, as they had been when they were shipped. Held, that the damages were not so uncertain and speculative as to be impossible of ascertainment.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Action by John Hendrix against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

George Robertson and Geo. S. Grover, for appellant. P. H. Cullen and R. D. Rodgers, for respondent.

BLAND, P. J.

At the June term, 1903, of the Audrain circuit court, the plaintiff recovered a verdict and judgment against the defendant. Timely motions for new trial and in arrest of judgment were filed, and were continued over to August, 1903, to which month the June term was adjourned. Prior to August, 1903, Hon. E. M. Hughes, judge of the Audrain circuit court, died, and Hon. R. D. Rodgers was appointed his successor. Judge Rodgers duly qualified, and held the August term pursuant to the June adjournment. Judge Rodgers having been of counsel in this and a number of other cases pending in the Audrain circuit court, and thereby being disqualified to hear and pass upon the motions in this case for new trial and in arrest of judgment, by agreement of parties an order was duly made requesting "Hon. J. A. Hockaday, judge of the Ninth Judicial Circuit, to sit as judge therein, and otherwise act as judge in each of said causes; and, by agreement of the parties in each of said causes, the Hon. J. A. Hockaday, judge of the Ninth Judicial Circuit of Missouri, is selected to hear and pass upon the motions now pending in each of said causes, and otherwise act as judge in each of said causes, and do any and every act in each of said causes that is lawful and proper to be done by a circuit judge." Judge Hockaday, in pursuance of such request, appeared at the August adjourned term of said court, when the following proceedings were had before him in the case of Hendrix v. Railroad: "Now, on this day, August 3, 1903, the Hon. R. D. Rodgers, regular judge of this court, having been of counsel of plaintiff in this cause, and by reason thereof disqualified from sitting as judge therein, requests Hon. John A. Hockaday, judge of the Ninth Judicial Circuit, to sit as judge herein, and otherwise act as judge in this case, the Hon. E. M. Hughes, judge, who heard this cause, being dead; and, by agreement of the parties hereto, the Hon. John A. Hockaday, judge aforesaid, is selected to hear and pass upon the motions for a new trial and in arrest of judgment in this cause, and otherwise act as judge in this cause. And now the parties hereto, by their attorneys, appearing, the motions for a new trial and in arrest of judgment are submitted to the court, and the same are continued under advisement until the September term of this court, 1903." Thereupon the said John A. Hockaday took said motion for new trial under advisement, and announced that he would pass upon the same at the approaching September term, 1903, of said Audrain circuit court. But before the September term, 1903, of said court, the said R. D. Rodgers resigned his office as circuit judge of said court, and the Governor of Missouri appointed Houston W. Johnson as his successor, and the said Houston W. Johnson duly qualified as such judge, and opened and held the September term of said court; and thereupon the said John A. Hockaday refused further to sit in said cause and to pass upon said motion. Thereupon the plaintiff filed a motion to vacate all the orders in said cause transferring the same to the said John A. Hockaday, and this motion the said Houston W. Johnson, as judge of said court, sustained. Said motion to vacate is as follows: "Now comes the plaintiff, and moves the court to set aside and vacate the order heretofore made submitting this cause to Judge John A. Hockaday, and for cause says that said cause was submitted to Judge Hockaday because Hon. R. D. Rodgers, who is of counsel in said cause, was appointed judge of this court, and, as such judge, was disqualified to hear said cause, and since said matter was submitted to Judge Hockaday, and before the said Judge Hockaday had considered said cause, Judge Rodgers resigned the office of circuit judge, and the Hon. H. W. Johnson was appointed, and is now, judge of said court, and he, the said Johnson, being not disqualified to sit and hear said cause, the Honorable John A. Hockaday declined to entertain jurisdiction of said cause; and the plaintiff therefore moves the said order be set aside, and that the present judge of this court assume jurisdiction and hear and determine said cause." The order sustaining said motion is as follows: "Now, on this day, November 3, 1903, comes plaintiff, by attorney, and files motion to set aside and vacate the entry heretofore made in this cause, submitting this case to Hon. John A. Hockaday; and now, said motion coming on for hearing, the parties appearing by counsel, and the court having seen and heard said motion and being fully advised, doth sustain said motion, and doth order and adjudge that the record entry heretofore made in this cause on the 3d day of August, 1903, and entered of record in circuit court record Z, at page 156, also page 159, submitting this cause to Hon. John A. Hockaday, judge, be, and the same hereby are, set aside, vacated, and for naught held." To which action of the court in sustaining said motion the defendant excepted, and saved its exceptions. Thereupon the said Houston W. Johnson, sitting as judge in said cause, took jurisdiction of the motion for new trial in said cause, and overruled the same, to which action of the court in overruling said motion the defendant excepted, and saved its exceptions. The defendant objected to all the actions of said Houston W. Johnson, as judge of said court, in taking jurisdiction of said cause, and excepted and saved its exceptions to every one and all of his actions therein, and the defendant was granted an appeal to the St. Louis Court of Appeals, and now prays this court to allow, sign, and seal its bill of exceptions, which is accordingly done this 21st day of December, 1903.

The defendant appealed, and contends that Hon. H. W. Johnson was without jurisdiction to pass upon its motions for new trial and in arrest of judgment, and that both motions are yet pending somewhere. It will be observed that the orders made in the Audrain circuit court did not change the venue of this cause from that county to any other county in the Ninth Judicial Circuit, over which Judge Hockaday presided, but that Judge Hockaday was agreed upon by the parties, and requested by Judge Rodgers, to hear and pass upon the motion pending in the Audrain circuit court. That there was no intention that the venue of the cause should be removed from Audrain county is not only shown by the orders of the court, but is also shown by the fact that the parties did not understand that the case was to be taken from Audrain county, but that Judge Hockaday should appear at the Audrain circuit court, and then and there, as special judge, pass upon the motions. After the submission of the motions, and on the coming in of the regular judge, who was not disqualified to hear...