Oliver v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 16 December 1916
• Docket Number: No. 1742.,1742.
• Parties: OLIVER et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

190 S.W. 361

OLIVER et al. v. ST. LOUIS, I. M. & S. RY. CO.

No. 1742.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Action by John R. Oliver and others, doing business as W. R. Slack & Co., against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed on condition.

J. F. Green, of St. Louis, and N. A. Mozley, of Bloomfield, for appellant. H. C. O'Bryan and Haw & Brown, all of Charleston, for respondents.

FARRINGTON, J.

Plaintiffs recovered judgment for $2,418.13 damages (and interest) alleged to have been occasioned by a fire set out by one of defendant's locomotives in Mississippi county. It was alleged and shown that the property destroyed was personal property consisting of axe handles and other articles of merchandise timber stored in a warehouse and in and around a sawmill. The plaintiffs had $2,000 insurance on this stock, which they collected and thereupon sued the defendant for the balance of the value of the merchandise destroyed and recovered the judgment hereinbefore mentioned.

The facts of this case are identical with those in the case of Slack v. St. L., I. M. & S. Ry. Co., 187 S. W. 275, decided by this court on June 17, 1916. Practically the same evidence was introduced and the same instructions given in both cases; the evidence in the present case being, if any different, a little stronger in favor of the plaintiffs on the question of the engine throwing out sparks as it passed along by the mill. We therefore refer to that opinion for a statement of the facts and for the discussion of the law touching the demurrer to the evidence, as well as instructions given and refused.

There appears the same error in this case that occurred in the Slack Case, supra, to wit, the jury were instructed to allow 6 per cent. interest on the amount of the loss between the date of the fire and the date of the judgment. This question was discussed in the Slack Case and the ruling made that in actions ex delicto of this character interest may not be recovered. There was no dispute concerning the value of the property destroyed, the plaintiffs' evidence showing that it was worth at the time of the fire at least $2,100.55, and the instruction of the court told the jury they could allow damages not to exceed the sum of $2,100.55 and interest thereon at the rate of 6 per cent. per annum from the 20th day of ...