Ingwersen v. St. Louis & Hannibal Railway Co.
| Decision Date | 16 January 1906 |
| Parties | INGWERSEN, Respondent, v. ST. LOUIS & HANNIBAL RAILWAY CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pike Circuit Court.--Hon. D. H. Eby, Judge.
AFFIRMED.
Judgment affirmed.
J. D Hostetter for appellant.
The plaintiff charged negligence against defendant and the proof negatived that charge. It is a well-settled principle of pleading that a party cannot base a claim to recover upon a specific act of negligence charged in his petition, and then be permitted to recover by making proof of another act of negligence not charged in the petition. And proof of other acts of negligence not pleaded will not be permitted. Breeden v. Mining Co., 103 Mo.App. 176; Waldhier v. Railroad, 71 Mo. 514; Schneider v. Railroad, 75 Mo. 296. First. The contract contained a recital that the rate therein mentioned was a special and reduced rate. There was no evidence to the contrary and in the absence of contradictory evidence the prima facie showing made by the recitals in the contract become conclusive. Bowring v Railroad, 90 Mo.App. 324; Wyrick v. Railroad, 74 Mo.App. 406; McFadden v. Railroad, 92 Mo. 343; Hart v. Railroad, 112 U.S. 351. Second. The defendant's line was wholly within the State and it was not an interstate carrier and therefore not subject to the provisions of the interstate commerce law. Third. The validity of the ten days' notice clause does not depend upon a reduced rate of freight. Harned v. Railroad, 51 Mo.App. 488; Ward v. Railroad, 158 Mo. 229. The court erred in modifying defendant's instruction No. 3. The modification consisted of submitting the question of waiver of the ten days' notice. It will be observed that the plaintiff's reply was a general denial and in the defendant's answer it is especially alleged that the plaintiff was under obligation to give this ten days' notice and failed so to do. In order to have made the question of waiver an issue in the case so as to have justified the modification of instruction No. 3 as made by the court, the plaintiff in his reply should have specifically pleaded the waiver. A waiver cannot be shown under a general denial. Pier v. Heinnehoffer, 52 Mo 333; Whiteside v. Magruder, 75 Mo.App. 364; Olcorn v. Railroad, 108 Mo. 81; Nichols, Shepherd & Co. v. Larkin, 99 Mo. 271, 272; Bank v. Hatch, 78 Mo. 13; Kiskaddon v. Jones, 63 Mo. 192. The court erred in refusing defendant's instruction No. 11. This instruction declared the law to be that all the terms of plaintiff's contract were binding on him except those undertaking to exempt defendant from liability for damages occasioned by its negligence. There could be nothing objectionable to this instruction. The plaintiff was sui juris and ought to be held to his contracts. McLane v. Clapp, 141 U.S. 432; Harvey v. Railroad, 74 Mo. 538; Estes v. Reynolds, 75 Mo. 565; Live Stock Co. v. Railroad, 87 Mo.App. 337; Helm v. Railroad, 98 Mo.App. 419; Railroad v. McCleary, 77 Mo. 634; O'Brien v. Kinney, 74 Mo. 125; Harrison v. Railroad, 74 Mo. 364; Miller v. Railroad, 62 Mo.App. 252; Gann v. Railroad, 72 Mo.App. 54; Leonard v. Railroad, 54 Mo.App. 294; Kellerman v. Railroad, 136 Mo. 188; Duvenick v. Railroad, 57 Mo.App. 550.
W. O. Gray and Dempsey & McGinnis for respondent.
The appellant by its bill of lading contracted to transport respondent's cattle from Bowling Green, Missouri, to the Union Stock Yards, Chicago, and therefore the negligence of any of its connecting carriers became appellant's negligence under the provisions of section 5222, Revised Statutes 1899, and no allegation in the petition was necessary respecting any connecting carrier. McCann v. Eddy, 133 Mo. 59; Jones v. Railroad, 89 Mo.App. 653; Redman v. Railroad, 90 Mo.App. 68; Eckles v. Railroad, 72 Mo.App. 296; Davis v. Railroad, 126 Mo. 69; Railroad v. Interstate Commerce Commission, 162 U.S. 184. Appellant's contention as to notice is not well taken. Although notice was given, none was necessary to entitle the plaintiff to recover for damages sustained by reason of a decline in the market, and the amount of the verdict shows that the jury allowed only damages for a decline in the market. Plaintiff's actual damages, as shown by the evidence, was more than double the amount of the verdict. Leonard v. Railroad, 54 Mo.App. 293; Com. Co. v. Railroad, 80 Mo.App. 169; Live Stock Co. v. Railroad, 100 Mo.App. 674; Ward v. Railroad, 158 Mo. 226-237; Dezell v. Fidelity & Casualty Co., 176 Mo. 253. Respondent was bound to sell the cattle at the best price possible, and notice within ten days was absolutely useless and unavailing to the appellant, although the evidence shows that in fact plaintiff notified appellant's agent at Bowling Green within a few days after the sale of the cattle, and made out and delivered to him a written statement of his loss together with the bills of sale to be sent in to the appellant company. Besides, appellant waived notice after the expiration of the time and denied any liability, and evidence thereof was admitted on the trial without objection, and such evidence was introduced by the appellant. Keyes-Marshall Bros. Co. v. Railroad, 87 S.W. 553; Harned v. Railroad, 51 Mo.App. 482.
Action of damages for delay in transporting live stock. On January 19, 1904, the respondent delivered to the defendant, the St. Louis & Hannibal Railroad Company, at Bowling Green, Missouri, eighty head of cattle to be carried to Chicago, Illinois. The cattle should have reached Chicago in time for the market of the succeeding day; but a delay, which occurred within seven miles of the city, prevented them from reaching there until too late for the market and, consequently, they had to be sold on the market of the 21st; when, on account of a lower price ruling and the decrease of weight caused by the delay, a considerable loss was entailed. It was to recover damages for this loss that the present action was instituted. The petition says there was unreasonable delay in the transportation of the stock, which caused them to be delivered to the consignee at destination after three o'clock in the afternoon of January 20th, instead of early in the morning as they should have been; wherefore, they had to be sold on the next day's market for twenty-five cents a hundred pounds less than they would have brought on the market of the 20th. The petition then proceeds as follows:
"Plaintiff further says that by reason of said delay in the transportation of said cattle and the long stay in the cars without food and water caused by said delay and negligence on the part of the defendant, its agents, employees and servants, there was a shrinkage of thirty-two hundred pounds in the weight of said cattle more than there would have been had they arrived at said destination within a reasonable time and that by reason of the appearance of said cattle caused by said delay and the long stay in said cars as aforesaid, he was compelled to accept as the best price possible, forty-five cents per hundred pounds less than he would have gotten had said cattle arrived within a reasonable time as aforesaid."
It will be seen that there is no precise allegation that the defendant's negligence caused the delay, though probably that is the natural inference to be drawn from the language of the petition. The substance of the pleading is that there was a delay in transit which resulted in loss to the plaintiff and that the defendant's agents and servants were negligent in the matter. Now, the defendant insists that, as the evidence proved that delay was due to the negligence of a connecting company, a verdict against the plaintiff should have been directed. In dealing with this point, it is to be premised that as the gravaman of plaintiff's case was unreasonable delay in transporting his stock to destination and a consequent loss we think an amendment to show the delay was the fault of a connecting carrier would have been permissible. Such an amendment would not have substituted a new cause of action for the one originally stated; which, of course, is not allowed. [R. S. 1899, sec. 657; Heman v. Glann, 129 Mo. 325.] The case would still have been one for negligent delay in carrying stock and resting on the statute, and requiring the same measure of damages. [Lottman v. Barnett, 62 Mo. 159; and see on this subject Rippee v. Railroad Co., 154 Mo. 358; Ross v. Mineral Land Co., 162 Mo. 317; Schwab Clothing Co. v. Railroad Co., 71 Mo.App. 241; Stewart v. Van Horne, 91 Mo.App. 647.] It would have differed from the original case in respect of the negligence being that of a connecting carrier instead of the one which received the stock for shipment. Now, it is true that all the evidence, including the plaintiff's own testimony, showed no delay occurred on the defendant's road and that the defendant transported the cattle to Hannibal, the end of its line, and there delivered them to the Chicago, Burlington & Quincy Railroad Company, in the scheduled time. The delay occurred at the outskirts of Chicago on the Terminal Railroad; and, if due to negligence at all, it was the negligence of the company operating the last-named road. But the defendant omitted to call this discrepancy between the petition and the evidence to the attention of the lower court, either by objecting to testimony irrelevant to the allegations of the petition or in the motions for new trial and in arrest of judgment. In truth, instead of objecting to testimony going to show where the delay occurred and affording room for the inference that it was due to the neglect of a connecting carrier, the defendant itself introduced most of that evidence. The theories of defense were that the defendant was exonerated from...
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