Loomis v. Wabash, St. L. & P. Ry. Co.
| Decision Date | 13 April 1885 |
| Parties | E. G. LOOMIS ET AL., Respondents, v. THE WABASH, ST. LOUIS & PACIFIC RY. CO., Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Lafayette Circuit Court, HON. JOHN P. STROTHER, Judge.
Affirmed.
Statement of case by the court.
This action was instituted in a justice's court, based on the following statement:
Wabash St. Louis & Pacific Ry. Co., in account with E. G. Loomis and Albert Loomis, partners under firm name of E. G. Loomis & Co., Dr.:
| January, 1882, To unreasonable delay in transporting and delivering 90 barrels of salt from Chicago, Ill., to Lexington, Mo., to damage of said E. G. Loomis and Albert Loomis | $22 00 |
| September, 1885, To damage by unreasonable delay in transporting and delivering 90 barrels of salt, from Chicago, Ill., to Lexington, Mo., to damage of said E. G & . Albert Loomis | 42 00 |
| Total | $64 00 |
The plaintiffs recovered judgment for the sum of $36; from which defendant duly prosecuted its appeal to the circuit court. On the trial in the latter court before a jury, the plaintiffs read in evidence the following bills of lading:
WABASH ST. LOUIS & PACIFIC RAILROAD CO.
Office No. 85 Clark Street.
CHICAGO ILL., Sept. 21st, 1881.
Received from A. J. Latham the following packages, contents unknown, in apparent good order, marked and numbered as per margin:
To be transported by the Wabash, St. Louis & Pacific Railway Co., and forwarding lines with which it connects, until the said goods or merchandise shall have reached the point named in this contract, on the following terms and conditions, viz: That the W., St. L. & P. Ry. Co., and forwarding lines with which it connects and which receive said property, shall not be liable for leakage of oils, or any other kinds of liquids, breakage of any kind of glass, earthen or queensware, carboys of acids, or articles packed in glass, stoves, stove furniture, castings, machinery, carriages, furniture, musical instruments of any kind, packages of eggs, or for rust of iron and iron articles, or for loss or damage by wet, dirt, fire, or for loss of weight, or for condition of baling on hay, hemp or cotton, or for loss or damage of any kind on any article whose bulk requires it to be carried on open cars; nor for damage to perishable property on any kind occasioned by delays from any cause, or by change of weather; nor for loss or damage to any article of property whatever, by fire or other casualty while in transit, or while in depots or other places of transhipment, or at depots or landings at points of delivery; nor for loss or damage by fire, collision, or the dangers of navigation while on the seas, rivers, lakes or canals. All goods and property under this contract will be subject, at owner's cost, to necessary cooperage or baling, and are to be transported to the depots of the companies or landings of the steamboats or forwarding lines at point receipted to for delivery. It is further agreed, that the W., St. L. & P. Ry. Co., and forwarding lines with which it connects, shall not be held accountable for any damage or deficiency in packages after the same shall have been receipted for in good order by the consignees or their agents, or the next carrier beyond the point which this instrument contracts. Consignees are to pay freight and charges upon the goods or merchandise in lots or parts of lots, as they are delivered to them. It is further stipulated and agreed, that in case of any loss, detriment or damage done to or sustained by any of the property herein receipted for during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment or damage, and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on accouut of said goods. And it is further agreed that the amount of loss or damage so accruing so far as it shall fall upon the carrier above described, shall be computed at the value or cost of the said goods or property at the place and time of shipment under this contract. This contract is executed and accomplished, and the liabilities of the companies as common carriers thereunder terminate on the arrival of the goods or property at the station or depot of delivery (and the companies will be liable as warehousemen only thereafter), and unless removed by the consignee from the station or depot of delivery within twenty-four hours of their said arrival, they may be removed and stored by the companies at the owner's expense and risk. NOTICE.-- In accepting this contract, the shipper or agent of the owner of the property carried, expressly accepts and agrees to all its stipulations, exceptions, and conditions.
In witness whereof, the agent has affirmed to _____ bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void. This receipt to be presented without alteration or erasure.
N. J. HOWE, Cont'g Agent.
C. L. RISING, Gen. Agent.
Marks, Consignee and Destination:
E. G. Loomis & Co., Lexington, Mo.
Description of Articles. Weight sub. to cor.
90 brl. Sack Fine Salt.
Subject to the classification of connecting lines.
| Through a. | per 100 lbs. 1st class |
| Through a. | per 100 lbs. 2nd class |
| Through a. | per 100 lbs. 2rd class |
| Through a. | per 100 lbs. 4th class |
| Through a. | per 100 lbs. 5th class |
| Through a. 60 cts. | per Barrel |
| Through a. | per car of 20,000 lbs. |
Adv. Charges.
G. L. RISING, Gen. Agent.
Per Bern.
The second bill of lading is like the above, with the exception that it bears the date January 4, 1882.
The evidence, on the part of the plaintiffs, tended to show that they were merchants at Lexington, Mo., and made the purchase of salt in Chicago for retail at their business house in Lexington. The first assignment arrived in due course of time at one of defendant's stations on the north side of the Missouri river (Lexington being on the south side) and about one mile from Lexington. There was no bridge over the river at that point, and the only mode of transporting freight from that station to Lexington was by wagon and ferry boat. This freight lay at said station 22 days before it was delivered in Lexington. There seems to have been some controversy between the parties as to whose duty it was to bring the freight from the station across the river to Lexington. It was finally delivered in Lexington, presumably by the defendant.
The other shipment arrived in due course of time at the depot station at Lexington on the line of the Mo. Pacific Railroad Company. When applied for by plaintiffs, the defendant's station agent refused to deliver the salt until a charge of $8.00 for freightage was paid, which plaintiffs declined to pay for the reason that it was an overcharge in excess of the contract price. The goods were detained at the station for ten days, until it was discovered by the station agent that plaintiffs were right, and the charge was wrong.
The suit was to recover damages subsequent upon these delays. There was evidence offered and given on the part of plaintiffs tending to show that if the salt had been delivered according to contract, the plaintiffs would have been able to sell it for much more than they could realize on it at the time of delivery.
It may be conceded for the purpose of the case that defendant introduced evidence tending to show that the station across the river was the nearest station to Lexington on defendant's line of roads, and that merchants at Lexington generally hauled goods from that station to Lexington.
The court gave the following instructions for the plaintiffs:
1. The jury are instructed that there is no evidence or claim for damages in the case for any injury to the goods shipped, namely, said lots of salt, or either of them, nor any deterioration in its quality, by reason of said alleged delay in the delivery thereof; and even if the jury should find for the plaintiffs in this cause, the measure of plaintiffs' damages cannot exceed the difference in the market price of such salt at Lexington, Missouri, at the time the same should have been delivered, and the market price thereof at Lexington, Missouri, at the time it was actually delivered, and within a reasonable time thereafter, not exceeding the amount charged in plaintiffs' account on the respective lots of salt.
2. Plaintiffs cannot recover in this case any speculative damages. That is, they cannot recover any amount from defendant on account of their failure to get unusual, exorbitant, and extra prices for salt, beyond a reasonable market value, as the jury may believe from the evidence, growing out of the accidental scarcity of the article in Lexington market just at the time of such delay and such delivery.
The court gave the following instructions on behalf of defendant:
4. That the plaintiffs in this case can only recover, if any, such damages as they may have actually sustained by the delay of the salt in question, not exceeding, however, the amounts respectively claimed therefor in plaintiffs' account, and in determining the amount of such damages, the jury are to consider alone the market price and value of such salt as specified in other instructions given.
The defendant also asked and the court gave the following instructions, with the exception of the parts in italics, which were added by the court against the objection of defendant:
1. The jury are instructed that there is no...
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