Missouri Pac. Ry. Co. v. Hall

• Decision Date: 23 February 1895
• Docket Number: 447.
• Citation: 66 F. 868
• Parties: MISSOURI PAC. RY. CO. v. HALL.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F. 868

MISSOURI PAC. RY. CO. v. HALL.

No. 447.

United States Court of Appeals, Eighth Circuit.

February 23, 1895

George E. Dodge, B. S. Johnson, and J. E. Williams, for plaintiff in error.

William T. Hutchings (Stockton S. Fears was with him on brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This was a suit by James O. Hall, the defendant in error, against the Missouri Pacific Railway Company, the plaintiff in error to recover damages for an unreasonable delay in transporting 331 head of beef cattle from Nowata, in the Indian Territory to the city of Chicago, Ill. The plaintiff recovered a judgment, and the defendant company has brought the case to this court, alleging several errors in the proceedings of the trial court. We will first notice certain errors that have been assigned relative to the admission of testimony.

It is urged, in the first instance, that the trial court erred in permitting the plaintiff, James O. Hall, to testify to an interview that he had with the defendant's live-stock agent, Mr. Boline, on the day the cattle were shipped because, as it is said, the testimony tended to vary the terms of the shipping contract, which was entered into, in writing, shortly after the alleged interview. An inspection of the record shows that the conversation in question occurred on the morning of Saturday, June 20, 1891, and that the trial court held that only so much of the conversation was relevant and admissible as tended to show that the defendant's agent was advised that the shipper desired to have his cattle delivered in Chicago in time for the market of Monday, June 22, 1891. No error was committed in admitting this testimony. It did not vary the terms of the written contract, and was not intended to have that effect. It was admitted, as the record discloses, solely for the purpose of showing that the carrier had notice of the shipper's intention to sell his cattle on a particular day. If the plaintiff gave the defendant company notice that he wished his cattle to arrive in time for the market of a particular day, he might reasonably expect that in view of such information the carrier would be more expeditious in executing the contract of affreightment. The knowledge that a party has, when he enters into an agreement, of the object which the opposite party hopes to accomplish, should be allowed to have some weight in determining whether the party thus informed discharged the obligation which he assumed with reasonable diligence, and with a due regard for the accomplishment of the purpose which the other party had in view. Blodgett v. Abbot, 72 Wis. 516, 40 N.W. 491; Railway Co. v. Gilbert, 4 Tex.Civ.App. 366, 22 S.W. 760, and 23 S.W. 320; McGraw v. Railway Co., 41 Am.Rep. 701.

It is claimed that the trial court further erred in allowing several witnesses, namely, Winfield Scott, W. C. Powell, and J. O. Hall, to testify as to the shrinkage in the weight of the cattle between June 22, 1891, and June 23, 1891, the day when the cattle were sold, the cattle having arrived on the 22d, but too late to be sold on that day. This objection is urged on the ground that no evidence was offered to show that these witnesses were experts, or that they had ever seen the plaintiff's cattle; also, on the ground that the questions which elicited the testimony were hypothetical, and that they did not embrace a correct statement of the facts which the proof tended to establish. An inspection of the record clearly shows that two of these witnesses had been engaged for some years in handling and shipping cattle, and that they were doubtless competent to express an opinion as to the extent that beef cattle would shrink in weight in a given time, and under given circumstances. It is also fair to infer, we think, that the third witness followed the same calling, and was likewise competent to testify as an expert. We are also of the opinion that the hypothetical questions propounded to these witnesses contained a fair statement of the facts which the evidence tended to establish, and that this ground of objection was not well taken. There is a further reason, however, why the objection to the testimony in question ought not to prevail in this court. It was objected to solely on the ground that it was 'incompetent, irrelevant, and immaterial.' If the specific objection to the testimony which counsel urge in this court had been urged in the trial court, it is obvious that the defendant would have had no cause to complain either of the form of the hypothetical question, or of the competency of the witnesses to testify as experts. The objection stated was therefore too general to be of any avail in an appellate court. We would...