Morrow v. Wabash Railway Co.

• Decision Date: 09 November 1925
• Citation: 276 S.W. 1030,220 Mo.App. 518
• Parties: FINIS MORROW AND GARY FRANCE, PARTNERS, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF MORROW & FRANCE, RESPONDENTS, v. WABASH RAILWAY COMPANY, APPELLANT
• Court: Kansas Court of Appeals

276 S.W. 1030

220 Mo.App. 518

FINIS MORROW AND GARY FRANCE, PARTNERS, DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF MORROW & FRANCE, RESPONDENTS, v. WABASH RAILWAY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

November 9, 1925

Appeal from Circuit Court of Macon County.--Hon. Vernon L. Drain Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Lacy & Edwards for respondents.

Ben Franklin & Son and Homer Hall for appellant.

BLAND J. Arnold, J., concurs; Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action to recover damages for loss sustained by plaintiffs to a carload of animals consisting of fourteen horses and ten mules. There was a verdict and judgment in favor of plaintiffs in the sum of $ 850 and defendant has appealed.

This is the second appeal in the case. [See Morrow v. Wabash Ry. Co., 265 S.W. 851, where there may be found a statement of the facts involved.] In that appeal we reversed the judgment and remanded the cause for the reason that the court erred in not sustaining defendant's demurrer to the evidence and in giving plaintiff's instruction No. 1 founded upon the theory of common-law liability of the defendant. Our holding was based on the fact that the petition pleaded and the instruction submitted a case founded upon the theory of the carrier's common-law liability as an insurer whereas a special shipping contract was introduced in evidence by plaintiffs. It was held that by this conduct plaintiffs placed themselves in the position of having declared on one cause of action and proving another. The reversal was also put upon the ground that plaintiffs tried and submitted the case upon the wrong theory as to the measure of damages.

On the present appeal defendant again insists that its demurrer should have been sustained. The facts in the two appeals are substantially the same except defendant's evidence at the last trial tended to show that the animals at Luther and between that point and the National Stock Yards at East St. Louis were handled in a manner consistent with due care on its part, and explaining the transfer of the animals to another car. However, there was no evidence as to what happened to the stock in the switch yards at Moberly. Defendant's evidence on this point merely consisted of a statement by the yardmaster at Moberly that there was no rough handling of the car in the yards there because the cars were customarily handled in a certain way. What happened to this particular load of animals is not shown. From what we said in the former appeal there is no merit in the contention that defendant's demurrer to the evidence should have been sustained on the ground that there was no evidence tending to show that the animals were injured by reason of the negligence of the defendant, thus meeting defendant's evidence tending to show that there was no negligence on its part.

In the last trial plaintiffs did not offer the contract of shipment as they did in the first. This contract, however, is pleaded by the defendant and plaintiff Morrow on cross-examination admitted that the contract was executed by plaintiffs and defendant. The contract was introduced in evidence by defendant and it is insisted that under our holding in the former appeal the court erred in giving plaintiffs' instruction No. 1 in the first trial. This instruction is based upon the common-law liability of the defendant as pleaded in the petition; it does not take into consideration all of the defenses pleaded in the answer founded upon the contract of shipment. In the last trial, as in the first, there is an inference from defendant's evidence that the car was overloaded, which, if true, under the contract of shipment pleaded, exempted defendant from liability if the injuries were due to this cause. However, at the request of the defendant the court gave the following instructions--

"The court instructs the jury that if they should find and believe from the evidence that whatever damage or injury plaintiffs may have sustained, if any has been proven, was due to and caused by the inherent vice, weakness, viciousness and natural propensities and inclinations of said animals being shipped, and by biting, kicking and trampling one upon the other, then your verdict should be for the defendant.

"The jury are instructed that if they should find and believe from the evidence that whatever damage or injury the horses and mules mentioned in the evidence sustained were caused or procured by the natural propensities and inherent nature of the animals to fight, bite or injure one another, together with the fact that the car in which they were being transported was overloaded by plaintiffs' animals, then the plaintiffs cannot recover and your verdict should be for the defendant."

The provisions of the special contract governing this shipment did not supersede the common-law liability of the defendant but merely constituted a modification of it. It is held that the common-law liability of the carrier may be modified through any fair, reasonable and just agreement with the shipper which does not include exemption against the negligence of the carrier or its servants. [Adams Express Co. v. Croninger, 226 U.S. 491, 509.] Plaintiffs, even in the face of the contract of shipment, were entitled to plead and stand on the common-law liability of the defendant. The provisions of the contract exempting the defendant in part from its common-law liability were a matter of defense and while plaintiffs were bound by the reasonable provisions of that contract, there was no error in plaintiffs' instruction No. 1 in view of the fact that defendant's instructions covered its defenses based upon the contract. [State ex rel. v. Hope, 102 Mo. 410; Meily v Railroad, 215 Mo. 567.] There can be no question that even in cases of live animals transported in interstate commerce, plaintiffs may plead an action upon the carrier's common-law liability as insurer and make out a prima-facie case by proving delivery to the carrier in good condition and delivery by the carrier in bad condition. The burden is then cast upon the carrier to show the loss or injury was caused in some manner that exonerated the carrier from liability. [Hartford Fire Ins. Co. v. Payne, 243 S.W. 357, 359, and cases therein cited.] Our holding in the first appeal was correct but based upon a different situation, as ...