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

• Decision Date: 06 February 1911
• Citation: 154 Mo. App. 420,134 S.W. 665
• Court: Missouri Court of Appeals
• Parties: OTRICH v. ST. LOUIS, I. M. & S. RY. CO. et al.

134 S.W. 665

154 Mo. A. 420

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

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. TORTS (§ 26)—JOINT TORT-FEASORS—LIABILITY.

An action based on a joint tort is not supported by proof of a cause of action founded on separate torts of the tort-feasors.

2. CARRIERS (§ 177)—INITIAL AND CONNECTING CARRIERS—AGREEMENTS—LIABILITY.

Carriers on connecting routes forming associations and traffic arrangements to carry freight through the whole line are partners, and each is liable for any loss or injury happening on any part of the route.

3. CARRIERS (§ 177)—INITIAL AND CONNECTING CARRIERS—AGREEMENTS—LIABILITY.

A carrier may contract to carry beyond its own line, and where several carriers form a continuous line and contract to carry goods through for an agreed price, which the shipper pays in one sum, and which the carriers divide among themselves, they are jointly and severally liable to the shipper for a loss taking place on any part of the line.

4. CARRIERS (§ 177)—INTERSTATE SHIPMENTS —LIABILITY.

Under the interstate commerce act (Act Cong. Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169], amended by Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1909, p. 1166]), making the initial carrier of an interstate shipment liable for any loss or injury caused by any carrier, the initial carrier of an interstate shipment is liable for damages occurring on the connecting carrier's line, and any damages occurring to the shipment by the negligence of the connecting carrier may be recovered from the initial and connecting carriers jointly; but the connecting carrier is not liable for any injury occurring on the line of the initial carrier.

5. CARRIERS (§ 215) — CARRIAGE OF LIVE STOCK—SUFFICIENCY OF CARS—LIABILITY.

A shipper of live stock, who accepts a car furnished instead of waiting for a better car on the following day as promised by the carrier's agent, and who loads his stock into the car, may not hold the carrier liable for defects in the car.

6. CARRIERS (§ 213) — CARRIAGE OF LIVE STOCK—DELAY—LIABILITY.

A carrier of live stock is not liable for delay in the transportation thereof, unless the delay was occasioned by its negligence, and a carrier acting in good faith and to protect the shipment is not negligent.

7. CARRIERS (§ 185)—INITIAL AND CONNECTING CARRIERS—JOINT LIABILITY.

A shipper of an interstate shipment, to maintain a joint liability against the initial and connecting carriers, has the burden of showing that the damage to the shipment was caused by the connecting carrier.

8. PLEADING (§ 36)—PETITION—CONCLUSIVENESS.

The allegations of the petition are conclusive on plaintiff, and he may not contradict them by evidence on the trial.

9. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK—DELAY.

Evidence held not to show that a connecting carrier of live stock was guilty of negligent delay in transporting the same.

10. CARRIERS (§ 205) — CARRIAGE OF LIVE STOCK—NEGLIGENCE.

A carrier handling a shipment of live stock in the usual and ordinary course of business complies with the law.

11. CARRIERS (§ 227)—LIVE STOCK—INITIAL AND CONNECTING CARRIERS—LIABILITY.

A shipper of live stock over connecting roads, who alleges that he is unable to determine the exact amount of liability to be attached to each carrier because the carriers are so closely connected in business arrangements and because they employ the same agent and jointly use the same yards at the point where the greatest damage was discovered, is not thereby relieved from the duty of properly stating in his petition a cause of action and showing at the trial that the carriers are jointly responsible in order to recover from both.

12. PLEADING (§ 20)—ALTERNATIVE ALLEGATIONS—STATUTES.

To bring an allegation within Rev. St. 1899, § 626 (Ann. St. 1906, p. 650), authorizing

either party to allege any fact alternatively, declaring his belief of one alternative or the other, and his ignorance of one or the other, a fact alternatively pleaded must be positively alleged, coupled with an averment of the pleader's belief of one or the other alternative so alleged.

Appeal from Circuit Court, Scott County; Henry C. Riley, Judge.

Action by T. M. Otrich against the St. Louis, Iron Mountain & Southern Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

J. F. Green and Robert A. Anthony, for St. Louis, I. M. & S. Ry. Co. S. H. West and Wammack & Welborn, for St. Louis Southwestern Ry. Co. J. R. Young, for respondent.

NIXON, P. J.

This is an action for damages in which the plaintiff was a shipper of live stock and the defendants were common carriers of freight. The claim is for damages for injuries to plaintiff's stock by reason of the defendants' negligence. Plaintiff obtained judgment for $400, and the defendants appealed to the St. Louis Court of Appeals. The case was transferred to this court, and the parties have appeared and waived defect of jurisdiction.

The petition is as follows (caption omitted):

"Plaintiff states that defendants are both railroad corporations, owning, leasing, and operating a line of railroad in and through Scott county, Mo., with offices in said county where said defendants may be found and served; that defendants operate a line of railroad from Illmo, Mo., to East St. Louis, Ill., and jointly use the same together with yards at Illmo, Mo.; that as such railroad corporations the defendants are common carriers.

"Plaintiff states that on the 15th day of January, 1908, defendant St. Louis, Iron Mountain & Southern Railway Company contracted with plaintiff to ship for plaintiff a lot of horses and mules from McClure, Ill., to Clarendon, Ark.; that said contract is evidenced by bill of lading hereto attached, marked, `Exhibit A,' and made to constitute a part of this petition; that when defendant St. Louis, Iron Mountain & Southern Railway Company carried said consignment as far as Illmo, Mo., it delivered same to defendant St. Louis Southwestern Railway Company, and, by agreement between said defendants, said defendant St. Louis Southwestern Railway Company undertook to complete said contract to carry said consignment to Clarendon, Ark.; that in evidence of said contract, the defendant St. Louis Southwestern Railway Company delivered to plaintiff their certain bill of lading, duly executed and signed, which is hereto attached, marked `Exhibit B,' and made to constitute a part of this petition. (The part in italics was stricken out by plaintiff at the close of the case.)

"Plaintiff states that defendants contracted to and were in duty bound as such common carriers to convey said consignment of live stock in safe and sound cars and in a safe and sound manner without unnecessary delay from said point, McClure, Ill., to said point of destination, Clarendon, Ark., and then and there deliver said consignment to plaintiff in a safe and sound condition except conditions that might arise from other causes than neglect on the part of defendants. But plaintiff states that defendants were wholly neglectful of their duties as common carriers in such behalf; that defendant St. Louis, Iron Mountain & Southern Railway Company carelessly and negligently loaded said consignment of live stock in an unsound, improper, and unfit car; that said consignment was shipped in such car; that defendant St. Louis Southwestern Railway Company received said consignment and permitted same to remain in said unsound, improper, and unfit car; that said consignment was negligently and carelessly switched around by defendants on way to said point, Illmo, Mo., and on yards at Illmo, and were knocked down, trampled upon, beaten, and bruised and mangled by the careless handling of these defendants, and when arrival was made at point of destination, Clarendon, Ark., said stock was in a badly damaged condition; that said consignment of live stock was unnecessarily detained at Illmo, Mo., from the afternoon of January 15, 1908, until between 10 and 11 o'clock of the following day, during which time said stock was compelled to remain in the open winter weather without any shelter and were greatly damaged in consequence of such exposure.

"Plaintiff states that he is unable to determine the exact amount of liability to be attached to each defendant on account of said defendants being so closely connected in their business arrangements and on account of them having the same agent and jointly using the same yards at said point, Illmo, Mo., where the greatest damage was discovered; that both defendants were guilty of gross negligence and misconduct in handling said consignment of live stock.

"Plaintiff states that the entire consignment of live stock was damaged in the sum of $200 counting damage from exposure, from standing out in the winter weather all night, and time and additional expense in getting the stock partially back in condition, and which damage it would be difficult to more specifically itemize; that one large bay mule was cut, bruised, and mangled, and damaged in the sum of $145; that one brown mule was hurt in the stifle joint and bruised in the ankle and damaged in the sum of $125; that one mare was bruised in the withers and damaged in the sum of $100; that one brown mule was bruised and mangled and damaged in the sum of $165; that one gray mule was bruised about body and sprained hock and damaged in the sum of $100; that one bay pacing horse had eye knocked out and was damaged in the sum of $100; that one gray mule had ankle bruised and was damaged in the sum of $70; that one valuable stud horse was scratched and damaged in the sum of $200; that all of said stock mentioned as being damaged was a part of said consignment and received the injuries aforesaid on account of said careless handling and misconduct of defendants in transporting same under the contract mentioned above and in violation of defendan...