Midland Valley R. Co. v. Larson

• Decision Date: 19 January 1914
• Citation: 138 P. 173,41 Okla. 360,1914 OK 41
• Parties: MIDLAND VALLEY R. CO. v. LARSON.
• Court: Oklahoma Supreme Court

138 P. 173

41 Okla. 360, 1914 OK 41

MIDLAND VALLEY R. CO. v. LARSON.

Supreme Court of Oklahoma

January 19, 1914

Syllabus by the Court.

Where the petition, in an action for damages, contains sufficient statements of facts to show the court that plaintiff has sustained a detriment, and the amount thereof, and that defendant had wrongfully caused same, and that it is a detriment for which the law affords redress, such a petition states a cause of action.

In the absence of evidence to the contrary, a presumption of ownership of real or personal property arises from the possession and control of such property.

A demurrer to the evidence admits every fact which the testimony, together with such inferences as may reasonably arise from the surrounding circumstances, reasonably tend to prove; and, in an action for damages, where the testimony considered in the light of the surrounding circumstances reasonably tends to show that plaintiff has sustained the amount of damages claimed, and that defendant had unlawfully caused such damages, a demurrer to the evidence is properly overruled.

The law does not require that a station agent be authorized to contract with a shipper to furnish a certain kind of car at a certain hour of a certain day, in violation of prescribed rules of the company, and in discrimination against other shippers, but it does require that he be authorized to furnish reasonable facilities within a reasonable time for carrying on the business of the public, either upon his own authority or upon his demand or notice to the company; and where a car has been demanded by a shipper and promised by an agent, and a reasonable time taken for furnishing same, then in the absence of satisfactory showing for an unreasonable delay, the company will be held liable for the damages resulting from such delay.

Ordinarily the owner of chattels is qualified, by reason of that relationship, to give his estimate of their value, and where he qualifies as knowing the market value of such chattels as hogs, sheep, cattle, and horses, it is not error to permit him to so testify.

Where a party has been engaged in shipping stock from one point to another over a line of railroad for a period of 10 years during which time he shipped some 30,000 head of stock, and states that he knows the reasonable time required for making the trip, he should be permitted to so testify.

"Where the cause of action arose before the adoption of the Constitution, but suit was not filed until afterwards, the constitutional provision permitting a verdict to be returned by three-fourths of the jurors applies." C., R.I. & P. Ry. Co. v. Baroni, 32 Okl. 540, 122 P. 926.

Where the remarks of counsel are objected to by opposing counsel and sustained by the court, and no exception is taken to the ruling of the court nor request made that the jury be admonished in reference thereto, a judgment will not be reversed because of the remarks complained of.

The giving of the following instruction is assigned as error: "You are instructed that if you find that the plaintiff is entitled to recover for any damages to the sheep by reason of holding them while waiting for the car, as explained in the preceding instruction, such item of damage should be determined by you, finding the market value of the sheep in the condition they were when delivered at the destination, and then finding their market value in the condition they would have been in if the delay had not occurred at the stock pens at Hardy, Okl.; and then the difference between these two values would be the proper amount of damages, as to that item." Held, this instruction in the light of the entire charge is not prejudicial to defendant's rights.

Commissioners' Opinion, Division No. 2. Error from County Court, Kay County; Claud Duval, Judge.

Action by Matthew Larson against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Edgar A. De Meules and Sol H. Kauffman, both of Muskogee, for plaintiff in error.

P. W. Cress, of Perry, and H. S. Braucht, of Newkirk, for defendant in error.

HARRISON C.

This action was begun in the county court of Kay county in March, 1909, by Matthew Larson against the Midland Valley Railroad Company for damages sustained by reason of delay in shipment of fat sheep from Hardy, Okl., to Kansas City, Mo. The cause was tried in February, 1911, and verdict returned and judgment rendered in favor of plaintiff for the sum of $331.50, from which judgment and order overruling motion for new trial the railroad company appeals upon 37 separate assignments of error, the first being, that the court erred in overruling the demurrer of plaintiff in error to the first cause of action stated by plaintiff below.

The portions of plaintiff's petition complained of by the railroad company which purport to state the cause of action against the railroad company are as follows:

"* * * (2) That on or about the 24th day of February, 1907, plaintiff ordered a car for the shipment of sheep over the defendant's line of railroad from Hardy, Okl., to Kansas City, in the state of Missouri. Plaintiff ordered the said car for shipment from the said station on the 4th day of March, 1907, and plaintiff was advised by the agent in charge of said station that the car so ordered would be placed in position for loading on Monday morning, March 4, 1907.

(3) Relying upon the advice of said agent, plaintiff drove 243 head of sheep to the station at Hardy, Okl., on March 4, 1907; that when he arrived with the said sheep at the said station the car as ordered had not arrived; that plaintiff was compelled to place the said sheep in stock pens at the station without proper shelter, and away from their accustomed feed lots, to await the car for shipment of the said sheep; that defendant failed to send and place a car for the shipment of said sheep until about the 8th day of March, 1907; that the delay in delivering the said car for the shipment of said sheep compelled plaintiff to hold said sheep in the said pens for over four days, until the 9th day of March, 1907, and the said sheep were greatly reduced in weight, and put in bad condition for shipment and market."

"(7) That by reason of the said negligence of the defendant, its agents and servants, as aforesaid, plaintiff was obliged to and did hire three men and a team five days to care for said sheep after they should and would have been shipped but for the negligence of the defendant as aforesaid, at a cost to plaintiff and to his damage in the sum of $37.50; that plaintiff was compelled to and did furnish extra feed to said sheep, to wit, 20 bales of hay, worth $4, and 35 bushels of corn, worth 32 cents per bushel, and of the value of $11.20."

Plaintiff further alleged that the car was furnished on the 9th, and the shipment delivered on said date for the Kansas City market, and that upon arrival at Kansas City notice in writing was given to the railroad company of the damage done to the shipment. Upon refusal of the company to reimburse plaintiff for the damage thus sustained, this action was brought for the sum of $282.70, and interest at 7 per cent. from the 12th day of March 1907.

We cannot agree with plaintiff in error that these allegations, considered in connection with the formal statements in the petition, do not contain sufficient statements that plaintiff had sustained a detriment, and that defendant railroad company, through its agents and employés, had wrongfully caused such detriment. This being true, then under section 2882, Comp. Laws 1909, section 2845, Rev. Laws 1910, Larson was entitled to compensation for the damages thus sustained.

The next assignment of error is that the court erred in overruling the demurrer to the evidence. Plaintiff in error's contention in this regard is based upon his assumption that the testimony failed to show that Larson was the owner of the sheep in question. While it does not appear in the record that Larson anywhere said, in so many words "These were my sheep," yet from beginning to end of the testimony his testimony is laden with valid inferences that he was the owner of the sheep in question. In fact no other inference could be drawn from the testimony. He stated: That he had been engaged in feeding sheep for about 10 years, during which time he probably had fattened and shipped 30,000 head. That this winter he was feeding 1,500 head. That, a portion of them being ready for shipment, he went in to the agent to ascertain as to when he could get cars; told him about how many he wanted to ship, and the agent told him about when he could have the cars. Relying upon this information, he returned home and began to make preparation for the shipment. That in order to make sure and sustain no loss by carrying his shipment in and finding no car there, he sent one of his men in to know if the car would be on hand, and received the information from the agent through such employé that the car would be on hand. In order to make still more certain in this regard, he sent his son in on the day before he took the sheep, to ascertain if the car would be there, and was again informed by the agent that it would be. That thereupon he cut out 245 head of sheep and drove them to town. When he got there the car was not there, and no satisfactory explanation given for its not being there. He was compelled to keep the sheep there for a period of five days in muddy, unsheltered, unfit pens, compelled to buy feed for them and hire hands to feed them. That by reason of this circumstance the sheep sustained great loss in shrinkage of flesh,...