Hill v. Davis

• Decision Date: 08 January 1924
• Docket Number: No. 18096.,18096.
• Citation: 257 S.W. 1069
• Parties: HILL v. DAVIS, Director General of Railroads.
• Court: Missouri Court of Appeals

257 S.W. 1069

HILL v. DAVIS, Director General of Railroads.

No. 18096.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by William Preston Hill against James C. Davis. Director General of Railroads, etc. Judgment for defendant, and plaintiff appeals. Affirmed.

Julian Laughlin, Warder Rannells, and Charles A. Smith, all of St. Louis, for appellant.

L. H. Strasser and Homer Ball, both of St. Louis, for respondent.

DAVIS, C.

This is an action by the shipper against the Director General of Railroads for breach of contract in failing to safely carry from Detroit and deliver to plaintiff at St. Louis a Buick automobile. At the close of plaintiff's evidence the court directed a verdict for defendant. From the judgment entered thereon, plaintiff appeals.

The evidence for plaintiff tends to show that on May 2, 1918, plaintiff's agent delivered a Buick automobile and a trailer to the Director General in charge of the Pere Marquette" Railway for delivery to plaintiff at St. Louis. About a year later the plaintiff was notified that the automobile had reached its destination at St. Louis and that it was ready for delivery. The plaintiff inspected the automobile and trailer on the freight car in possession of the Wabash Railway Company, but refused to accept them, because they were worn out.

Plaintiff has set forth, as required by the rules of court, an assignment of errors. However, our right to consider error is limited to the complaints found in the motion for a new trial, and, as plaintiff's assignment of errors is broader in scope than the motion for a new trial, we may not consider the extraneous matter.

Plaintiff complains:

First. The court erred in instructing the jury, sitting in said cause, to find for defendant at the close of plaintiff's case. The record demonstrates that the court, at the instance of defendant, gave this instruction to the jury; but the record fails to reveal an objection or an exception taken by plaintiff to the instruction. The state of the record precludes us from entertaining this assignment of error. Lewis v. Mining Co., 199 Mo. 463, 97 S. W. 938; Osagera v. Schaff, 293 Mo. loc. cit. 345, 240 S. W. 124.

Second. The court erred in holding that it was necessary for summons to be served on the Pere Marquette Railroad Company in this action, though said company is not a party to this action. We have searched the record, but are unable to find that any such issue was presented to the court, or that any ruling was made or action taken by the court on that question. There is nothing before the court for consideration under this point. St. John v. L. & T. Co. (Mo. App.) 201 S. W. 916; Perry v. Railroad (Mo. App.) 184 S. W. 902.

Third. The court erred in holding that, to recover in this action, plaintiff must show that the damage done to plaintiff's shipment of goods occurred while in transit on the Wabash Railroad Company, instead of the Pere Marquette; both being under government control. We do not find that the court made such a ruling. If the question was attempted to be raised by the instruction given to the jury to find for defendant, then, as we have before shown, no objections or exceptions were saved to the giving of said instruction.

Fourth. The court erred in holding That this action against the Director General of Railroads is in effect a suit against the Wabash Railroad Company and the Pere Marquette Railroad Company. Again we are unable to find that the court made such ruling.

Fifth. The fifth, sixth, and seventh assignments of error relate to the exclusion of proper, competent, and relevant testimony offered by plaintiff. The fifth assignment of...