Marsh v. Davis

• Decision Date: 30 April 1923
• Docket Number: No. 14506,14506
• Citation: 251 S.W. 390
• Parties: MARSH et al. v. DAVIS, Agent.
• Court: Missouri Court of Appeals

251 S.W. 390

MARSH et al. v. DAVIS, Agent.

No. 14506

Kansas City Court of Appeals, Missouri,

April 30, 1923.

Rehearing Denied May 21, 1923.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

"Not to be officially published."

Action by Clay Marsh and another against James C. Davis, Agent. Judgment for plaintiffs, and defendant appeals. Affirmed.

Collet & Son, of Salisbury, and Homer Hall, of St. Louis, for appellant.

John D. Taylor, of Keytesville, and C. W. McAllister, of Chillicothe, for respondents.

BLAND, J.

This action, which arose in a justice court, is to recover damages for the negligent delay in the shipment of a carload of cattle. There was a verdict and judgment in favor of plaintiff in the sum of $147, and defendant has appealed.

The evidence shows that on the 15th day of December, 1916, plaintiff delivered the cattle, consisting of 35 heifers and one show steer, to the defendant to be transported from Triplett, Ms., to the National Stock yards at East St. Louis, Ill., over the Wabash Railroad. The usual time for transporting such stock from Triplett to the stockyards was from midnight on the day of shipment to early the next morning, but on this occasion the cattle reached St. Louis about noon on the 16th day of December, too late to be sold on the market of that day. They were sold the following day, resulting in extra expense of feeding and caring for the cattle, loss on account of the decline in the market, and excessive shrinkage of the show steer.

It is insisted by defendant that its demurrer to the evidence should have been sustained for the reason that there was no showing of negligence on the part of defendant, there being but one delay proved and that was not shown to be a negligent delay, and defendant fully explained that delay in a manner consistent with the exercise of due care on its part. However, we have searched the record and fail to find that defendant demurred to the evidence at any stage of the proceedings but joined with plaintiffs in submitting the case to the jury on the question of negligent delay of the defendant in the transportation of the cattle. Such being the fact, defendant is now estopped from making these contentions. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430. It is also insisted that the demurrer to the evidence should have been sustained for the reason that plaintiffs failed to give notice of loss and file a claim for damages within the time provided by the contract of shipment....