Howell v. Hines
| Decision Date | 06 April 1923 |
| Citation | 249 S.W. 924,298 Mo. 282 |
| Parties | J. F. HOWELL et al. v. WALKER D. HINES, Director General of Railroads, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Affirmed.
McBaine Clark & Rollins for appellant.
(1) The lower court should have directed the jury to return a verdict for appellant as requested, because there is absolutely no evidence that the cars were not furnished on account of the negligence of the carrier. Plaintiffs, as was necessary to state a cause of action, alleged negligence in their petition, but failed to prove it. They therefore failed to prove the cause of action alleged. Ficklin v Railroad, 117 Mo.App. 211; Raper v. Lusk, 192 Mo.App. 378; Huston Brothers v. Railroad, 63 Mo.App. 671; McNear-Talbot & Johnson v. Chesapeake & Ohio Ry. Co., 86 S. E. (W. Va.) 887; Ballentine v. Railroad Co., 40 Mo. 491. (2) Respondents by signing the live stock contract introduced in evidence waived any claim they might have had for damages on account of the failure of appellant to furnish cars. This was an interstate shipment of live stock and the waiver provision of the contract was valid and binding. 10 C. J. 136; Adams Express Co. v. Croueger, 226 U.S. 491, 53 S.Ct. 148, 44 L. R. A. (N. S.) 257; Missouri, Kansas & Texas Ry. Co. v. Harriman Bros., 227 U.S. 657, 57 L.Ed. 690; Thomas Bros. v. Railroad, 188 Mo.App. 22; Donevan v. Wells Fargo, 265 Mo. 300; Blair-Baker Horse Co. v. Railway, 200 S.W. 109; O'Briant v. Pryor, 195 S.W. 759; Smith v. Railroad, 186 Mo.App. 401; Coleman v. Hines, 217 S.W. 602; Aull v. Railroad, 136 Mo.App. 291; Johnson v. Mo. Pac., 187 S.W. 282; Hamilton v. Railroad, 177 Mo.App. 145. (3) The plaintiffs failed to show that the car was not furnished as ordered. Witness J. F. Howell testified that appellant's agent entered the order in the order book, and identified the order book which was introduced in evidence. The entries in the order book showed the cars were not ordered until November 18th and not on November 12th as contended by Mr. Howell. Plaintiffs made no attempt to explain the date of the entry in the order book. They failed to prove their case. McNear-Talbot & Johnson v. Chesapeake & Ohio Ry. Co., 86 S. E. (W. Va.) 890. (4) The court erred in permitting witness Howell to testify to the market price of the hogs from hearsay. Fountain v. Railroad, 114 Mo.App. 676. (5) The trial court committed error in permitting plaintiffs to prove that other cars ordered at other stations on the Wabash line were furnished by appellant to plaintiff on the same date. This was prejudicial error. Osborne v. Syster, 195 Mo.App. 520; Heffernan v. Neumond, 198 Mo.App. 667; Bovard v. Mergenthaler Linotype Co., 209 S.W. 965.
N. T. Gentry for respondents.
(1) A carrier is liable in damages for failure to furnish a car to a shipper, when ordered within a reasonable time. Baker v. Railroad, 145 Mo.App. 197; Britton v. Railroad, 167 Mo.App. 78; Hines v. Mason, 221 S.W. 861; Railroad v. Crain, 224 S.W. 1064 (Okla.) ; Howell v. Hines, 236 S.W. (Mo. App.) 886; Grass v. Railroad, 238 S.W. (Mo. App.) 551. Three days constitute a reasonable time for the carrier to furnish a car to a shipper. Payne v. Mallory, 230 S.W. 270. Judgment may be rendered against the Director General of railroads for failure to furnish a car. Railroad v. Walker, 234 S.W. 619. (2) A stipulation in a live stock contract, waiving damages on account of a prior written or oral contract, does not waive damages for failure, to furnish cars when ordered. Cases supra, and Thee v. Railroad, 233 S.W. (Mo. App.) 959. There was no consideration for the alleged release and waiver. (3) Plaintiff was a regular shipper from Boone county for twenty-five or thirty years; and, like all other shippers, made it a part of his business to keep posted on the value of hogs, both in St. Louis and in Columbia. He received daily advices from St. Louis commission men on the hog market, he was a reader of the Live Stock Reporter and talked to his son (plaintiff Murry Howell) about the price of hogs at the St. Louis market on those two days; and his son was at the market on those days. In what other way could a hog buyer and shipper become acquainted with the market value of hogs? If he had been at the market in St. Louis, he would of necessity have to take the statement of other hog buyers and salesmen, regarding the sales and prices; for he could not be present at all of them. It could not be insisted that the law requires a dealer in live stock to be present and actually see sales of live stock, and see the money pass from one man to another, in order to know the market value of such live stock. Sisson v. Railroad, 14 Mich. 497; Lush v. Druse, 4 Wend. 313; Mt. Vernon Co. v. Teschner, 108 Md. 168; Railroad v. Pearce, 101 S.W. 762, 82 Ark. 353; Peters v. McPhadden, 75 Wash. 527, 135 P. 26. "It is the experience that the witness acquires in the ordinary conduct of affairs and from means of information, such as are usually relied on by men engaged in business for the conduct of that business, that qualifies the witness to testify." Whitney v. Thatcher, 117 Mass. 523; Lawrent v. Vaughn, 30 Vt. 90; Note 12 Ann. Cas. 128; 3 Wigmore on Evid. sec. 1704. Quotations of prices as shown by a newspaper are admissible in evidence, as the court knows that that is the usual way the business of the country is carried on. Nash v. Classen, 163 Ill. 409; 17 Cyc. 425. In a suit for damages, resulting from failure to deliver lambs, the court admitted in evidence the market reports, as shown in a newspaper called "Live Stock Review," published in the city, showing the quotations on the day of the alleged breach. Rulls v. Young, 98 Mich. 231. (4) Defendant was not prejudiced by the admission of the evidence of the plaintiff J. F. Howell, but rather was helped thereby. Plaintiff Murry Howell testified that he was at the market in St. Louis and at National Stock Yards on those two days, and that the market price of hogs of this character was from fifty to seventy-five cents per hundred lower on the 20th of November than on the 19th of November. So the evidence of plaintiff J. F. Howell, to which defendant now makes objection, was actually helpful to defendant; and defendant cannot be heard to complain of it. McMickel v. Railroad, 209 S.W. 613. (4) Defendant should not now be heard to complain for another reason. All of the evidence shows that there was a decline in the market, and the matter was not questioned by defendant in the trial court; it offered no evidence whatever to contradict the testimony of both plaintiffs thereon, although ample opportunity was given defendant to procure such evidence. The case was tried on the theory that there was a decline in the market value of the hogs; hence defendant cannot now assume a contradictory position and claim that there was no decline. (5) The chief defense interposed in the trial court was that plaintiffs had suffered damage by reason of the failure to furnish the cars at the Columbia station on the 18th of November, but that plaintiff had waived such damages by executing a written contract for the shipment of the hogs on the 19th of November. Hence defendant's objection to the alleged hearsay evidence is frivolous.
BROWN, C. Small and Lindsay, CC., concur. Graves, P. J., concurs in all except what is said as to the testimony of J. F. Howell on the matter of prices at the St. Louis market.
This is a suit to recover damages against the defendant in charge of the Wabash Railroad as Director General of Railroads for the Government, for failure to furnish cars for the transportation of three carloads of hogs from Columbia, Missouri, to the National Stock Yards in Illinois, within a reasonable time after the request or order therefor had been given by the plaintiffs, who were extensive dealers in and shippers of live stock in that portion of the State under the name of J. F. Howell & Son.
The petition states that the order was given to the agent of the company at Columbia, on November 12, 1919, for the delivery of three cars for the purpose of this shipment, for loading at that station on the 18th of the same month, and was duly accepted. The defendant, by answer, denies that the cars were ordered on the 12th, but alleges and asserts that the order was not given until November 18th, and that the cars were delivered for loading promptly and on the next day. He also pleads in bar a written contract in the nature of a bill of lading, signed by both parties and containing the following clause: "All prior contracts, agreements and understandings, whether verbal or written, relating in any manner to the receipt or transportation of live stock described herein or the furnishing of cars therefor, are hereby waived by the shipper and are merged in this agreement." This contract is dated on the 19th and was signed with the name of J. F. Howell & Son by one of the three boys who were to and did accompany the shipment to its destination as caretakers, and the shipment moved on the same day and proceeded to its destination in Illinois.
Two defenses are interposed to defeat recovery. (1) That no negligence in the furnishing of cars for the shipment is shown by the evidence; (2) that the plaintiffs, by the clause which we have quoted from the contract of shipment, waived any negligence with which the defendant might have been charged with respect to delay in the furnishing of the cars. The precise point involved in this defense is founded on the charge that the cars were not ordered on November 12th as stated by plaintiffs, but were ordered on November 18th, and were promptly delivered the next day.
There were three identical contracts covering this shipment -- one for each carload -- differing...
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