McMickle et al, v. Wabash Ry. Co.

• Decision Date: 27 January 1919
• Docket Number: No. 13080.,13080.
• Citation: 209 S.W. 611
• Parties: McMICKLE et al. v. WABASH RY. CO.
• Court: Missouri Court of Appeals

209 S.W. 611

McMICKLE et al. v. WABASH RY. CO.

No. 13080.

Kansas City Court of Appeals. Missouri.

January 27, 1919.

On Motion for Rehearing, March 12, 1919.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by W. M. McMickle and another against the Wabash Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

McBaine & Clark, of Columbia, for appellant.

N. T. Gentry, of Columbia, for respondents.

TRIMBLE, J.

This is a suit for damages on account of negligent delay in transportation of a shipment of cattle from Columbia, Mo., to National Stockyards, East St. Louis; Ill. It is therefore an interstate shipment, and governed by the rules of decision prevailing in the federal courts.

Plaintiff's action is based upon the contention that the cattle were shipped from Columbia at about 4 p. m. of October 30, 1917, and should have arrived at the stockyards between 8 and 9 the next morning and been ready for the market of that day (October 31st); that defendant so "negligently and carelessly shipped said stock" that they did not arrive at destination until 3 p. m. of October 31st, which was too late for that day's market, on account of which they had to be held over till the day following; that by reason thereof plaintiffs suffered from a decline in the market, an extra shrinkage of the cattle, and the expense of an extra feed bill.

Defendant demurred on the ground of misjoinder of parties plaintiff, which was overruled; and thereupon defendant answered with a plea of misjoinder and a general denial. On motion of plaintiff the court struck out that portion of the answer which pleaded misjoinder. Defendant then filed an amended answer, which consisted of a general denial.

A jury was waived and the case was by agreement tried by the court sitting as a jury. At the conclusion of plaintiffs' evidence the defendant demurred thereto, which was overruled. No evidence was offered by defendant, and judgment was rendered in favor of plaintiffs for $134; the plaintiffs having sued for $149.24. The defendant appealed.

The petition declared upon a joint contract of shipment. Defendant contends that the proof shows only a contract made with plaintiff McMickle; in other words, that there is a fatal variance. 13 Corpus Juris, 755. We will go into this question no further than to say that in our opinion the shipment contract in question was a joint contract. All the evidence so showed, and there was none to the contrary. In one place the contract is signed "McMickle and Wright," and in the body of the contract Mc-Mickle and Wright are named as one of the contracting parties thereto. The fact that at the close of the contract appears only the signature of McMickle does not make it a several contract. While the usual place of signature is at the close of a contract, yet if it appears in the writing at any other place, and was placed there as a signature, it is sufficient. Bishop on Contracts, § 344; North St. Louis, etc., Ass'n v. Obert, 169 Mo. 507, 518, 69 S. W. 1044. Owners of a joint shipment of cattle may join in a suit to recover damages sustained by each. Texas, etc., R. Co. v. Andrews (Tex. Civ. App.) 80 S. W. 390.

It is insisted that there was no evidence to show that the cattle were not delivered at destination within a reasonable time. There was evidence tending to prove, and the court so found, that the usual and customary time at which cattle shipped from Columbia in the afternoon should reach their destination was between 8 and 10 o'clock on the morning of the next day, and that the shipments were thus transported in time to be unloaded and placed on the market of said last-named day. There was also evidence, and the court so found, that this particular shipment reached the city of St. Louis early in the morning, "about daylight," of October 31st. The evidence also showed that the usual and customary time required to take stock from St. Louis over to the National Stockyards was "anywhere from two to three hours." The destination of the cattle was, of course, the stockyards, not the city of St. Louis. There was no witness who testified whose duty it was to unload the cattle; but as the contract placed that duty upon the shipper, we assume it was the defendant's duty to place the car or cars at the unloading chutes, and then it was the Stockyards Company's duty to unload them, acting as agent for the shipper.

No witness affirmatively gives the hour the cattle arrived at the stockyards. Every witness, when asked at what hour the cattle reached the stockyards, said he did not know. But plaintiff McMickle says he was at the stockyards from half past 8 of the morning of the 31st, that he could not find out about his cattle (so that evidently he was on the lookout for them), and that the first time he saw the cattle at the stockyards was about 1:40 p. m., and at that time they were in the car on the railroad track "nearly ready to be unloaded." While no one would testify to the precise hour when they were unloaded, yet it is apparent that it was so near 3 o'clock that the cattle could not be put on the market for that day before the closing hour, which was 3 o'clock. The court found that they were unloaded and put in the sales pen at about 3 p. m., which was too late for that day. The witness Crane had a shipment of cattle in the same train. He says the train reached St. Louis about daylight, which he thinks was near 6 or 7 o'clock; that when he reached St. Louis he left the shipment, and went on over to the stockyards, and waited for the cattle, and looked for them, but he did not see them until some time, he judged, between 12 and 1 o'clock; that they were then in the cars, but were not unloaded for two or three hours after, and between 3 and 4 o'clock, as well as he could state; that while there was a pretty heavy rush of cattle that day, and the switches were pretty well crowded, yet there were plenty of chutes at which they could have been unloaded; and that he thought the cattle could have been gotten up to an unloading chute. So that there was evidence from which the court could find there was an unexplained delay of from daylight till 1 or 2 o'clock in the afternoon in transporting the cattle from St. Louis to the stockyards. This time was a period of seven or eight hours, or a delay of from four to six hours above the usual and ordinary time in getting from St. Louis to the stockyards.

In addition to the above delay in getting from St. Louis to the stockyards, there is evidence from which the court, as a trier of the facts, could find that there was a further delay of from two to three hours in placing the cattle at the unloading...