Morrow v. Wabash Ry. Co.

• Decision Date: 10 November 1924
• Docket Number: No. 15103.,15103.
• Citation: 265 S.W. 851
• Parties: MORROW et al. v. WABASH RY. Co.
• Court: Missouri Court of Appeals

265 S.W. 851

MORROW et al. v. WABASH RY. Co.

No. 15103.

Kansas City Court of Appeals. Missouri.

November 10, 1924.

1. Carriers 228(1) — Unusual condition of animals, indicating external violence during transportation, repels presumption pertaining to proper vice, and casts burden on carrier.

If condition of animals suggests injuries from external violence during transportation, and evinces a condition not usually attendant on carriage with due care, it is sufficient to repel presumption pertaining to proper vice, and to cast burden on carrier of showing no negligence.

2. Carriers 216—I carrier's negligence mingled with inherent infirmity of animals and approximately causes injury, carrier is liable.

If carrier's negligence mingled with inherent infirmity of animals approximately cooperated to cause injury, carrier is liable.

3. Carriers 230(4)—Evidence of carrier's negligent handling of animals held sufficient to go to jury.

Evidence of injured condition of animals, indicating external violence during transportation, held sufficient to go to jury on question of defendant carrier's negligence.

4. Carriers 218(10)—Provision of contract requiring notice to carrier of injury to animals held inoperative.

Provision of contract requiring shipper to give carrier notice of injury to animals before they were removed from carrier's possession held inoperative, where carrier was first to discover injury, and prematurely ended shipment,

5. Carriers 229(2)—Difference between value of animals when delivered to carrier and when delivered by it in injured condition is not measure of damages.

Difference between market value at point of delivery, of animals injured during shipment, and their value when delivered to car rier, is not proper measure of damages, and evidence of market value before injury is inadmissible.

6. Carriers 229(2) —Measure of damages for injury to animals is difference between value at destination as delivered and what value would have been if uninjured.

Measure of damages for injury to animals during transportation is difference between value at point of destination in damaged condition and value if uninjured.

7. Carriers 229(2) — Measure of damages for Injuries to animals not delivered as intended is difference between value at intended destination and value when and where delivered in damaged state.

Where injured animals never reached destination intended, measure of damages for their injury was difference between their value in damaged condition where delivered and what their value would have been if delivered at time and place originally contemplated, less" any unpaid freight.

8. Carriers 229(2) — Measure off damages for injury of animals delaying delivery is difference between value when delivered and+ value when they should have been delivered,. plus expenses of delay.

Where mules consigned to New Orleans were injured and unloaded at East St. Louis and kept there for several weeks to recondition, and then reshipped to New Orleans, measure of damages for their injury was difference between value when they should have been delivered and when actually delivered,. plus cost of reconditioning and expense of reshipment, less any unpaid freight.

9. Carriers 215(1)—At common law, carrier liable for all losses, except as occasioned' by act off God, public enemy, or inherent vice.

At common law, carrier is liable for loss occasioned by causes other than its own negligence, except losses occasioned by act of God, public enemy, or inherent vice.

10. Carriers 203—Rights and liabilities attendant on interstate shipment depend on acts of Congress, contract, and common law, as accepted and applied by federal courts.

Rights and liabilities of parties growing out of interstate shipment depend on acts of Congress, contract between parties, and commonlaw principles accepted and applied by federal. courts.

11. Carriers 218(1)—Contract may reasonably limit common-law liability, notwithstanding Carmack Amendment.

Notwithstanding Carmack Amendment (U. S. Comp. St. §§ 8604a, 8604aa), carrier may

reasonably contract in limitation of its strict common-law liability.

12. carriers 227(3)—Proof of special contract inconsistent with common-law liability of defendant held insufficient to sustain action based on common-law contract.

Where plaintiff suing for injuries to animals in transit declared on common-law contract, and proved special contract inconsistent with common-law liability of defendant, there was failure of proof, and demurrer to evidence should have been sustained.

13. Pleading 395—Recovery must be on cause of action pleaded.

Plaintiff cannot declare upon one cause of action and recover upon another.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

Action by Finis Morrow and Gary France, partners doing business under the firm name and style of Morrow & France, against the Wabash Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Franklin & Van Cleve and John N. Franklin, all of Macon, and Homer Hall, of St. Louis, for appellant.

Lacy & Edwards, of Macon, for respondents.

BLAND, J.

This is an action to recover damages for loss sustained by plaintiff to a car load of animals consisting of 14 horses and 10 mules. The evidence shows that on March 25, 1923, plaintiffs and defendant entered into a contract whereby defendant agreed to ship the live stock in question from Macon, Mo., to New Orleans, La. The shipment did not reach New Orleans. On account of their bruised and maimed condition, when they arrived at East St. Louis, the connecting carrier at that point refused to accept the stock for further shipment, and, with the exception of two mules, it was sold there by plaintiffs. The petition seeks to recover the difference between the value of the stock before they were delivered to the defendant for shipment and their value when they arrived in East St. Louis. There was a verdict in favor of plaintiffs in the sum of $750, and defendant has appealed.

Plaintiffs' evidence tended to show that the shipment began on the night of Saturday, March 25th, and that the stock arrived in East St. Louis on the morning of Monday, March 27th, in a bruised and maimed condition, although the horses and mules were in good condition, gentle and well-disposed at the time of their delivery to defendant at Macon; that before they were shipped they had been kept together in the same barn and pen, and showed no evidence of being vicious or of a fighting disposition.

Plaintiffs did not accompany the shipment, but one of them, Morrow, found on his arrival at East St. Louis that the stock had been removed from the car, and were in a barn at the stockyards. The agent of the connecting carrier refused to accept them for further shipment on account of their condition. A veterinary examined the stock and found that

"There was a black gelding in the shipment, both eyes bruised and swollen, left eye swollen shut, left front leg bruised and swollen from hock to body; left hind leg bruised and swollen, animal quite lame and sore. There was a black mare in the shipment, 6 years old, 16 hands high, both eyes bruised and swollen, right front leg bruised and swollen from below knee to body, bruised and swollen under belly, right hind leg bruised and swollen from ankle to above hock, vulva bruised and swollen; animal looks like had been down in car; animal sore and lame. There was a gelding 8 years old, about 16 hands high, left hind leg bruised' and swollen, animal sore and lame. Sorrel mare, 6 years old, 15 hands high, right stifle bruised and swollen, animal quite sore and lame. Bay mare mule, 16 hands high, 6 years old, bruised and skinned on inside of left hind leg. Black mare mule, right eye bruised and swollen, right knee bruised and swollen, animal lame."

Plaintiff Morrow testified that 5 of the 10 mules were injured. Two of the mules were skinned over the eyes, and one had a cut on the hock, and the other on the hip; their legs, knees, and eyes were swollen; "their eyes, legs, and head just all out of shape." Eight of the stock were bruised and maimed worse than the others; some of these 8 were so badly crippled that "they could not hardly move at all and some of them could not see." The eyes of one horse were swollen "as big as a drum." The stock arrived at East St. Louis in a different car from the one in which they were shipped. Plaintiffs were unable to sell 2 of the mules in East St. Louis, but after a week or two they were in a condition to ship to New Orleans, where they were sold at a sacrifice.

Defendant's evidence tends to show that the train in which the stock was shipped from Macon passed through Moberly, at which point it was broken up, and the car switched, part of the train going east and part west; that the train was handled carefully and in the usual manner between Macon and Moberly.. There was no testimony as to what happened to the car while it was being switched at Moberly. The defendant put on as a witness its conductor who had charge of the train from Moberly to Luther, a point in North St. Louis. He testified that the train was handled carefully between these points; that at St. Peters, which is 23 miles from Luther, he noticed a slat broken on the side of the car close to the bottom; that on examination it had the appearance of being recently broken, and that it bad evidently been kicked. At this place "the stock were chasing one another around; they seemed to be restless, kicking." None of the animals were down at that time. At Ferguson, about 6 miles from Luther, the conductor noticed 2 of the horses down in the car. He tried to get them up without success. He noticed that their limbs were skinned, and one of them had a skinned place on its head. When he reached Luther, he directed the yardmaster's attention to the horses that were down, and told him that he had better unload them as they were in danger of being trampled to death....