McAlister v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 31 October 1881
• Citation: 74 Mo. 351
• Parties: MCALISTER, Plaintiff in Error v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY.
• Court: Missouri Supreme Court

74 Mo. 351

MCALISTER, Plaintiff in Error

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1881.

Error to DeKalb Circuit Court.--HON. JOSEPH P. GRUBB, Judge.

AFFIRMED.

William Henry, W. J. Franklin and S. S. Brown for plaintiff in error.

The defendant had no right to disregard the instructions of plaintiff by unloading and delaying the transporting of the cattle. 2 Redfield on Railways, (5 Ed.) 15; Streeter v. Horlock, 7 Moore 283; s. c., 1 Bing. 34. Defendant forcibly unloaded the cattle and thus committed the offense for which the prosecution was instituted against plaintiff. Wag. Stat., 251, §§ 1, 2. So that the loss of the cattle was the direct result of defendant's wrongful act. The judgment under which the cattle were sold was void so far as it authorizes such sale, and constitutes no defense to this action. The cattle were in possession of defendant, and it had no right to surrender them without process. Gilmore v. R. R. Co., 67 Mo. 323.Shanklin, Low & McDougal for respondent.

1. The petition does not show that defendant was under any obligation to transport the cattle to Lineville in the Hannibal cars. It was not bound to do so by virtue of being a common carrier; ( R. R. Co. v. Morton, 61 Ind. 574;) nor by virtue of any provision of the contract.

2. The damages claimed are too remote. The unloading of plaintiff's cattle was not the proximate cause of his loss. He does not say that his cattle were Texas, Mexican or Indian cattle, and that they could not be unloaded without exposing him to arrest and fine. The petition does not in terms deny that the charge made against him was true; he says he did not have time to disprove it. Whether this be treated as an action ex contractu or ex delicto, the defendant is not liable unless it exposed plaintiff's cattle to danger which it knew, or with ordinary forecast and prudence might have foreseen. Angell or Carriers, (5 Ed.) 432, § 482a; Cutting v. R. R. Co., 13 Allen 381, 384; Hadley v. Baxendale, 9 Exch. 354; Clemens v. R. R. Co., 53 Mo. 366; Vicksburg, etc., R. R. Co. v. Ragsdale, 46 Miss. 458.

3. This is not a suit to recover damages occasioned by delay in transporting or delivering freight; nor is it sought to recover for any depreciation in value of the freight by reason of anything done or omitted to be done by the defendant. The plaintiff seeks to recover damages on the ground that his freight was unloaded from certain cars against his will, whereupon he was wrongfully arrested for unlawfully bringing his cattle into the county, and subjected to a fine because he had not time to prove his innocence of the charge, whereby cattle of the value of $5,000 were sold to pay a fine and costs, amounting to $216.10. In the first place, the petition fails to show that plaintiff was arrested because the cattle were unloaded at Cameron; that was not the complaint made in the affidavit and could not affect his liability. The petition shows that these cattle were loaded into the Hannibal cars in this State, and that fixed plaintiff's liability under the 1st section of the Texas Cattle Law, (1 Wag. Stat., 251, §§ 1, 2,) if the cattle were Texas, Mexican or Indian cattle. In the second place, if the unloading of the cattle was the offense which subjected plaintiff to a fine, it does not seem clear how he could be made liable when they were not only not unloaded by him, but were unloaded by another against his will and in the face of his earnest protest. And in the third place, even though the defendant, knowing it was thereby subjecting the plaintiff to liability to be fined, wrongfully unloaded his cattle, thereby subjecting him to fine and costs, it would only be liable for the amount of such fine and costs, not for the value of plaintiff's property that he might permit to be sold to pay the fine and costs.

4. The plaintiff could not rightfully be subject to fine unless he had been guilty of some offense, and it will not do for him to say that because some wrongful act of defendant led to his conviction of an offense which he had committed, the defendant must pay his fine and indemnify him against all the remote consequences of such conviction.

5. The fact that the law under which plaintiff was arrested and fined has since been held unconstitutional, cannot possibly help the plaintiff; for he does not admit that his cattle came within the purview of the law. Hence whether the law was valid or invalid is immaterial so far as defendant is concerned. It is not sued for having improperly surrendered the cattle to the officer. The writ justified the officer in seizing and selling the property. And again, if the law was invalid, it was not unlawful to unload at Cameron, and the defendant was not bound to foresee that plaintiff would be convicted and fined by reason thereof.

RAY, J.

The petition, demurrer and judgment thereon constitute the record in this case The petition states that the defendant is a corporation, owning and operating a line of railroad in the States of Missouri and Iowa, which extends between the town of Cameron, in Missouri, and the town of Lineville, in Iowa; that the Hannibal & St. Joseph Railroad Company is also a corporation owning and operating a line of railroad extending between Kansas City, Missouri, and the said town of Cameron, at which last named point, the latter railroad connects with that of the defendant, forming with defendant's said road, a continuous line of railway between said Kansas City and said Lineville; that on the 24th day of July, 1873, plaintiff turned over to said Hannibal & St. Joseph Railroad Company, at Kansas City, 118 head of cattle for transportation to said Lineville, and that the said Hannibal & St. Joseph Railroad Company then and there received said cattle, and entered into a contract, by the terms of which it then and there, for a valuable consideration then paid by plaintiff, undertook and promised to and with plaintiff, to deliver said cattle at said Lineville; that it was provided by the terms of said contract, that two men, in charge of said cattle, should pass, free of charge, on the train, with said cattle, to take care of same, and that said cattle were to be taken care of, fed, watered, loaded and unloaded by plaintiff, at his own risk in all respects; that it was further provided in said contract, that the said Hannibal & St. Joseph Railroad Company should not be responsible for any loss or damage which might arise after said cattle were delivered at a point on its line, where they were to be delivered to any other company for further transportation; that said Hannibal & St. Joseph Railroad Company undertook and promised to deliver said cattle to said other company, and to contract with such other company, for and on behalf of plaintiff, for such further transportation according to the terms and stipulations in said contract contained.

The petition then further alleges that on the said 24th day of July, 1873, the plaintiff loaded said cattle into four certain cars furnished by the said Hannibal & St. Joseph Railroad Company for that purpose, and that the same were taken by said company to said town of Cameron, and said cars containing said cattle were then placed on the side-track of defendant, and were then and there turned over with said cattle therein contained and loaded to the defendant for further transportation to Lineville as aforesaid; that the defendant then and there took and received said cars with said cattle, and, for like valuable consideration, undertook, promised and agreed to and with the plaintiff (and to and with the said Hannibal & St. Joseph Railroad Company, which was then and there acting for and on behalf of plaintiff), to transport and carry said cattle to said town of Lineville according to the terms and stipulations of said contract; that the said Hannibal & St. Joseph Railroad Company then and there furnished to defendant for that purpose its said cars, in which said cattle were then loaded; that defendant then and there had the necessary engines and servants for hauling said cars; that one of defendant's freight trains into which said cars might have been incorporated and coupled, without detriment or inconvenience to defendant, was then about to leave defendant's yard at Cameron on its way to said Lineville; that plaintiff, who had accompanied said cattle for the purpose aforesaid, directed the defendant to forward said cattle in said cars, so furnished by the Hannibal & St. Joseph Railroad Company, without unloading or unnecessary delay; but that the defendant, disregarding his said directions, did, at the county of DeKalb, negligently, willfully and wrongfully, by force and against his urgent request and protest, unload said cattle out of said cars, and place them in its stock-yard in said county of DeKalb.

The petition then further proceeds to state that after the unloading of the cattle as aforesaid, and while said cattle were wrongfully detained by defendant in its stock-yards, to-wit: on the _____ day of July, 1873, one Handy and one Kirkpatrick of said county of DeKalb, and State of Missouri, made affidavit before one Stewart, a justice of the peace, in and for said county and State, chargin this plaintiff with bringing into said county Texas, Mexican and Indian cattle, and that thereupon said justice issued a warrant for the arrest of this plaintiff, under and by virtue of the provisions of the statute in such case made and provided, and delivered the same to one Thompson, a constable, and that said constable then and there arrested this plaintiff and took said cattle from the defendant's stock-yards; that said constable thereupon took plaintiff before said magistrate, who caused the matter charged in said affidavit and warrant to be summarily inquired into by a jury of six men, who found the plaintiff guilty of said matter charged in said affidavit and warrant, and assessed his fine at the sum of $100, which, with...