Ingwerson v. Chicago & A. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBurgess
Citation103 S.W. 1143,205 Mo. 328
Decision Date01 July 1907
PartiesINGWERSON v. CHICAGO & A. RY. CO.
103 S.W. 1143
205 Mo. 328
INGWERSON
v.
CHICAGO & A. RY. CO.
Supreme Court of Missouri. Division No. 2.
July 1, 1907.

JUDGMENT—CAUSE OF ACTION NOT PLEADED.

Where plaintiff sued for a violation of an alleged verbal contract by a carrier to transport cattle "within a reasonable time," an amended petition based on a special contract for a "special or fast train" to leave and arrive at specified times operated to withdraw the original petition, and he could not then recover upon the original petition, defendant waiving no right to object by answering the amended petition.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Thomas B. Ingwerson against the Chicago & Alton Railway Company. Defendant appeals from a judgment for plaintiff. Reversed and remanded.

W. O. Gray and Scarritt, Scarritt & Jones, for appellant. Dempsey & McGinnis and Tapley & Fitzgerrell, for respondent.

BURGESS, J.


This is an action by plaintiff against defendant, a common carrier, for damages in the sum of $840.58, alleged to have been occasioned by delay in the shipment of 84 cattle from Bowling Green, Mo., to Chicago, Ill., on January 26, 1904. The suit was begun in the circuit court of Pike county, Mo., May 11, 1904. In the original petition it was alleged that said cattle were delivered to defendant company on January 26, 1904, and defendant thereupon assumed, and it thereby became defendant's duty as a common carrier, to transfer said cattle to Chicago within a reasonable time; but that defendant "so carelessly and negligently conducted itself in the premises as that it failed and neglected to complete said carriage in a reasonable time," to plaintiff's damage, etc. Thereafter, during the June, 1904, term of said circuit court, plaintiff abandoned the charge of its original petition, and filed in this cause an amended petition wherein it is alleged "that on the 26th day of January, A. D. 1904, the defendant entered into a contract with the plaintiff under and by virtue of which, in consideration of certain freight charges to be paid, the defendant promised and agreed to carry from the city of Bowling Green, in Pike county, Mo., by special or fast train, 84 cattle, making five car loads, belonging to the plaintiff, to the city of Chicago, in the state of Illinois, and deliver the same in good condition at the Union Stockyards, in the said city of Chicago, on or before 7 o'clock of the morning of the 27th day of January, 1904. * * * But the defendant failed and neglected to begin said carriage at said hour, * * * and in violation of the terms of its said contract the defendant failed and neglected to carry to and deliver said cattle at their said destination on or before said hour of 7 in the morning of said 27th day of January, 1904," to plaintiff's damage, etc. Thereupon defendant filed its motion to strike out said amended petition, "for the reason that the same is a departure from and states a wholly new and different cause of action from the original petition herein," which motion was overruled by the court, and issue was joined on said amended petition, and the cause was tried upon the issue so made upon the amended petition. At the beginning of the introduction of testimony in the case counsel for plaintiff stated to the court that they stood solely upon the parol contract alleged in the amended petition, to wit, a contract for a special

103 S.W. 1144

and fast train to be started from Bowling Green not later than 7 o'clock on January 26th, and to reach Chicago not later than 7 o'clock on the morning of January 27th. At the end of all the evidence the trial court, at the request of the defendant, instructed the jury that plaintiff had wholly failed to prove the verbal contract alleged in the amended petition, and defendant thereupon requested the court to peremptorily instruct the jury that they should find for defendant upon the pleadings and the proof, which instruction the court refused to give. Thereupon the court, at the request of plaintiff, instructed the jury that it was defendant's duty to carry said cattle "within a reasonable time and without unnecessary delay," and that if defendant failed to do so they should find for the plaintiff, although no such charge or issue was made in plaintiff's amended petition. The sole issue made by the amended petition, namely, a breach of a special contract, was wholly ignored. At the trial it developed from the testimony that substantially all the delay to the train in question occurred before it reached Bowling Green, and the undisputed proof is that the sole cause of such delay was an unusually severe snowstorm and cold...

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20 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...substantial evidence in the record to support the judgment for plaintiff, and judgment should have been for defendant. Ingwerson v. Ry., 205 Mo. 328, 103 S.W. 1143; State ex rel. v. Turner, 328 Mo. 604, 42 S.W. (2d) 594; Steinberg v. Bank, 334 Mo. 297, 67 S.W. (2d) 63; Vastine v. Wilding, 4......
  • Morris v. Atlas Portland Cement Co., No. 27622.
    • United States
    • Missouri Supreme Court
    • July 30, 1929
    ...of the petition, it is a failure of proof. Park v. Park, 259 S.W. 417; Ross v. Mineral Land Co., 162 Mo. 317; Ingwerson v. Ry. Co., 205 Mo. 328. The plaintiff must recover on the cause of action stated in the petition or not at all. Jennings v. Cherry, 301 Mo. 321; Davis v. Western Union Te......
  • United Brick & Tile Co. v. Ault, No. 34379.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1938
    ...was not pleaded. Koons v. St. Louis Car Co., 203 Mo. 227; Whitelock v. Beach, 174 Mo. App. 428; Ingwerson v. C. & A. Ry. Co., 205 Mo. 328; Pugsley v. Lumber Co., 162 Mo. App. 360; Henning v. U.S. Ins. Co., 47 Mo. 425. (7) The petition did not declare upon an oral contract, and therefore rec......
  • Smith v. Harbison-Walker Refractories Co., No. 34329.
    • United States
    • United States State Supreme Court of Missouri
    • January 5, 1937
    ...second amended petition and by going to trial thereon. Cain v. Cap Sheaf Bread Co., 57 S.W. (2d) 763; Ingwerson v. Ry. Co., 205 Mo. 336, 103 S.W. 1143; Grymes v. Mill & Lbr. Co., 11 Mo. App. 362, 85 S.W. 946; Sanguinett v. Webster, 153 Mo. 367, 54 S.W. 563; Liese v. Meyer, 143 Mo. 556, 45 S......
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12 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...substantial evidence in the record to support the judgment for plaintiff, and judgment should have been for defendant. Ingwerson v. Ry., 205 Mo. 328, 103 S.W. 1143; State ex rel. v. Turner, 328 Mo. 604, 42 S.W. (2d) 594; Steinberg v. Bank, 334 Mo. 297, 67 S.W. (2d) 63; Vastine v. Wilding, 4......
  • Smith v. Harbison-Walker Refractories Co., No. 34329.
    • United States
    • United States State Supreme Court of Missouri
    • January 5, 1937
    ...second amended petition and by going to trial thereon. Cain v. Cap Sheaf Bread Co., 57 S.W. (2d) 763; Ingwerson v. Ry. Co., 205 Mo. 336, 103 S.W. 1143; Grymes v. Mill & Lbr. Co., 11 Mo. App. 362, 85 S.W. 946; Sanguinett v. Webster, 153 Mo. 367, 54 S.W. 563; Liese v. Meyer, 143 Mo. 556, ......
  • Mexico Refractories Co. v. Roberts, No. 20210.
    • United States
    • Court of Appeal of Missouri (US)
    • December 7, 1942
    ...court in this suit by injunction appellant declared upon a lease dated August 7, 1934. Sec. 1167, R.S. Mo. 1939; Ingwerson v. Railroad, 205 Mo. 328; Park v. Park, 259 S.W. 417. (b) Furthermore, appellant (plaintiff) failed to prove the allegations in its petition that "defendant (respo......
  • Thornton v. American Zinc, Lead & Smelting Co.
    • United States
    • Court of Appeal of Missouri (US)
    • January 28, 1914
    ...S. W. 168; Donovan v. Brewing Co., 92 Mo. App. 341, 349; Mekos v. Fricke, 159 Mo. App. 631, 637, 139 S. W. 1181; Ingwerson v. Railroad, 205 Mo. 328, 337, 103 S. W. 1143. In Fisher v. Realty Co., 159 Mo. 562, 62 S. W. 443, it was said that, though a party cannot declare on one cause of actio......
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