Moseley v. Missouri Pac. Ry. Co.

• Citation: 112 S.W. 1010,132 Mo. App. 642
• Parties: MOSELEY v. MISSOURI PAC. RY. CO.
• Decision Date: 05 October 1908
• Court: Court of Appeal of Missouri (US)

112 S.W. 1010

132 Mo. App. 642

MOSELEY v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

October 5, 1908.

1. ACTION (§ 48)—JOINDER OF CAUSES OF ACTION.

In an action against a carrier for failure to deliver a shipment, plaintiff, to meet different phases of proof, may plead in separate counts a breach of the common-law duty of the carrier to deliver, a conversion of the property, and a breach of contract to deliver in a reasonable time; the causes of action not being inconsistent, since proof of one does not necessarily disprove either of the others.

2. TRIAL (§ 330)— VERDICT — GENERAL VERDICT ON SEVERAL CAUSES OF ACTION—SUFFICIENCY.

The rule that, when the petition sets out several distinct causes of action, a verdict for the gross sum cannot be sustained, but there should be a separate verdict on each cause that the court may know how the issues were found, does not apply where there is but one cause of action stated in a different manner in different counts so as to meet any possible state of facts that may be shown by the evidence, since in such case a finding upon any one of the counts would be a bar to further recovery on any count.

3. APPEAL AND ERROR (§ 204)—RESERVATION OF GROUNDS OF REVIEW — OBJECTIONS TO EVIDENCE.

Objections to evidence not made when it was offered will not be considered on appeal, and hence, when a letter was objected to by defendant only because written after suit was brought and because an offer of compromise, the objection that the letter was hearsay, admissible only on the theory that it contained an admission against the interests of defendant, while it did not appear that the writer had authority to make an admission binding defendant, will not be considered on appeal.

4. EVIDENCE (§ 213)—COMPETENCY—OFFER OF COMPROMISE.

A letter by a railroad officer in reply to another, stating that the writer was entitled to the proceeds of sale of a shipment which had been refused on delivery, and requesting information as to the amount thereof, which stated such amount and that it was in the company treasury subject to claim, was not inadmissible as an offer of compromise.

Error to Circuit Court, Jackson County; Edw. P. Gates, Judge.

Action by W. J. Moseley against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Elijah Robinson and Harris Robinson, for plaintiff in error.

JOHNSON, J.

On June 24, 1903, plaintiff delivered a car of corn to defendant railroad company at the station of Levasy, Mo., and defendant undertook for hire to transport the corn to Ennis, Tex., and there to deliver it to plaintiff, the consignee. Plaintiff alleges that the property was not delivered and prays judgment for its value. The petition is in three counts—in the first, a breach of the common-law duty of the carrier to deliver is alleged; in the second, a conversion of the property; and, in the third, a breach of a contract to deliver in a reasonable time. Defendant alleges in its answer that it permitted plaintiff to load the corn in a car at Levasy on June 12, 1903, as an accommodation to him; that the property at the time was in danger of destruction by the great flood of the Missouri river then prevailing, and that it would have been destroyed had it been left in the crib where it was stored; that on June 24th plaintiff requested defendant to issue him a bill of lading for the transportation of the car to Ennis, Tex., and defendant complied with the request on the understanding and agreement that the shipment was received subject to delays, as defendant's railroad was in a crippled and congested condition from the ravages of the flood, and was disabled from forwarding the car promptly; that on July 17th the car was started on its journey, and in due time was delivered at Texarkana, the end of defendant's line, to a connecting carrier, and was hauled without delay from that place to Ennis. Further, it is stated that plaintiff refused to receive the corn at Ennis, and the connecting carrier sold it, paid the freight charges out of the proceeds, and retained the remainder for the benefit of the owner of the property. It appears from the evidence that, immediately after he received the bill of lading, plaintiff indorsed it to the Linton Grain Company of Kansas City, which was acting as plaintiff's broker and had sold the corn at Ennis. At the time of this transfer the grain company advanced plaintiff $298. Because of the great delay in transportation of the car, the purchaser at Ennis refused to accept the corn, and threw it back on the hands of the Linton Grain Company, which, in turn, required plaintiff to refund the amount of the advancement, and returned to him the bill of lading. Evidence introduced by defendant shows that the delay in forwarding the car was agreed to by plaintiff, but this is contradicted by the evidence of plaintiff. It was shown that from four to seven days would have been a reasonable time to consume in the transportation, and it is conceded that the corn was not delivered to plaintiff or on his order, but was sold by the connecting carrier, and net proceeds of $39 realized for the owner, which, however, is still in the hands of the connecting carrier.

At the request of plaintiff, the court instructed the jury as follows: "The court instructs the jury that, under the pleadings and undisputed evidence in this case, defendant on June 24, 1903, received of plaintiff the car load of corn described in plaintiff's petition, and issued a bill of lading therefor; that said car of corn remainded at Levasy station from said 24th day of June until July 6, 1903, when it was sent by defendant to Myrick station, on defendant's line, and there remained until July 17, 1903. If, therefore, you further find and believe from the evidence that such delay in the...