Pacific Express Co. v. Emerson

• Decision Date: 17 March 1903
• Citation: 101 Mo. App. 62,74 S.W. 132
• Court: Missouri Court of Appeals
• Parties: PACIFIC EXPRESS CO. v. EMERSON.<SMALL><SUP>*</SUP></SMALL>

74 S.W. 132

101 Mo App. 62.

PACIFIC EXPRESS CO. v. EMERSON.^*

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

CARRIERS OF LIVE STOCK — NEGLIGENCE — PROXIMATE CAUSE—EVIDENCE—APPEAL—INSTRUCTIONS CURED — ERRONEOUS JUDGMENT AGAINST SURETIES—EFFECT.

1. In an action to recover for the transportation of a jack, where damages for the death of the jack as a result of plaintiff's negligence were set up as a counterclaim, error in refusing an instruction that plaintiff was not liable on the counterclaim if the jack died from pneumonia or lung trouble, and his position in the crate in which he was placed did not produce or aggravate the disease so as to cause his death, was cured by instructions that plaintiff was not liable unless the disease was caused by plaintiff's negligence, and that the burden was on defendant to prove that negligence, and that it caused the disease of which the jack died.

2. In an action to recover for the transportation of a jack, where damages for the death of the jack as a result of plaintiff's negligence was set up as a counterclaim, evidence showing that the jack was in good health when received by plaintiff; that plaintiff's route agent permitted the jack to remain down in the crate in which it was placed; that jacks, if allowed to remain down in a crate, become paralyzed in their legs, and will die if not soon relieved; and that the jack died the day of coming to its destination—was sufficient to show that plaintiff's negligence in permitting the jack to remain down directly contributed to its disease and death.

3. Judgment entered against plaintiff on defendant's counterclaim, and against his sureties for costs, is, as to the latter, a nullity.

4. Judgment erroneously entered against plaintiff's sureties for costs does not invalidate the judgment against plaintiff.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by the Pacific Express Company against Luke M. Emerson. From a judgment for defendant on his counterclaim, plaintiff appeals. Affirmed, except as to plaintiff's sureties.

Plaintiff, a corporation and common carrier, for its cause of action, omitting formal allegations, stated the following: "Plaintiff states further that on April 19, 1899, the defendant delivered to its agent at Bowling Green, Missouri, a certain jack, to be transported by said plaintiff over certain railroad lines from Bowling Green, Missouri, to Wells, Texas, the same being consigned to J. L. Bailey at the latter place; that at the time of such delivery the plaintiff, through its agent at Bowling Green, paid defendant $2.50 in cash for the crate in which said jack was to be transported, and that the same was added to the charges for shipping, and that the charges for shipping said jack from Bowling Green, Missouri, to Wells, Texas, were twenty-eight dollars ($28), and that plaintiff expended in addition to the above items the sum of forty cents for hay to be fed said animal in transit, and until he should be delivered to the consignee upon his arrival at Wells, Texas; the total amount thus due the plaintiff upon the arrival of said jack at Wells, Texas, being the three items above mentioned, amounting to thirty dollars and ninety cents ($30.90). Plaintiff further says that said animal arrived at Wells, Texas, on April 22, 1899, and was sick upon his arrival, and died within a day or so thereafter, and the consignee, J. L. Bailey, refused to accept said animal, or to pay charges on same, on account of his age, it being another and different animal from the one he had contracted to purchase, and being 12 or 13 years of age, when the one he had contracted to purchase was seven years old, only; that the defendant was immediately notified that the consignee, J. L. Bailey, at Wells, Texas, had refused to accept said jack for the reason claimed by him, as stated above, or to pay charges thereon. Plaintiff further states that the amount of its charges above, to wit, $30.90, were necessary and reasonable charges and customary rates, and that defendant owes and is indebted to plaintiff in said amount of $30.90 as set out above; that said charges were incurred and expenses paid at the special instance and request of defendant; and that the defendant, by his contract entered into at the time of the delivery of said animal to plaintiff for shipment, agreed with said plaintiff to pay said charges. Plaintiff further says that demand of payment of said sum of $30.90 was made on defendant on May 1, 1899, and that no part of same has been paid, but that said amount still remains due. Wherefore plaintiff prays judgment against the defendant for said sum of $30.90, together with interest thereon from May 1, 1899, at the rate of six per cent. per annum, and for costs of suit."

Defendant, for answer, admitted the allegations of the petition, and that he owed plaintiff the sum of $30.90, and, for counterclaim stated the following: "And defendant, further answering, says that at the time he contracted and delivered said jack to plaintiff, to be safely carried and delivered to said Bailey at Wells, Texas, said jack was in perfect health and condition, and was safely and properly cared for, and at said time had been bargained for by said Bailey, and said Bailey had agreed to pay plaintiff the sum of eight hundred dollars for said jack, which amount was the fair and reasonable value of said jack; that the plaintiff did not safely carry or cause to be carried and delivered the said jack at Wells, Texas, pursuant to its agreement, but, on the contrary, the plaintiff so negligently conducted and so misbehaved in regard to the same in its calling as carrier that said jack was injured and contracted a disease while in plaintiff's keeping, from the effects of which he died, and was wholly lost to defendant; and defendant further states that thirty-six hours was the time usually occupied by the trains carrying plaintiff's express in going from Bowling Green, Missouri, to Wells, Texas, and was a reasonable time for the transportation of said jack to said Wells, Texas, from Bowling Green, Missouri; that the plaintiff failed to deliver the said jack at Wells, Texas, within thirty-six hours, pursuant to its agreement, but, on the contrary, so negligently and carelessly conducted and so misbehaved in respect to the same in its calling as a carrier that plaintiff failed to deliver said jack at Wells, Texas, until five days' time from the time said jack was delivered to plaintiff, and thereby injuring and diseasing said jack, and causing its death; that, by reason of the facts aforesaid, this defendant was injured by plaintiff, to his damage in the sum of eight hundred dollars, for which, with costs, he asks judgment."

The reply, omitting caption, was as follows: "Now comes plaintiff, and, for reply to defendant's amended answer, denies each and every allegation of new matter in said amended answer contained. Further answering, plaintiff says that at the time of receiving said jack for the purpose of forwarding him to Wells, Texas, the plaintiff and defendant entered into a written contract by which it was agreed that plaintiff should not be liable for any damage to said property caused by the detention of any train of cars upon which said animal should be placed for transportation, nor for the neglect or refusal of any railroad company to receive and forward same, and by which contract it was further agreed that said animal should be forwarded to its destination entirely at defendant's risk. Plaintiff says that the said jack carried by it to Wells, Texas, was not the same jack which had been bargained for by J. L. Bailey, but was another and a different jack, and was much older and of much less value than the one so bargained for by said Bailey, and that even if there was any unnecessary delay in transit, resulting from the delays in the movements of trains, etc., upon which same was loaded, plaintiff is not liable therefor, and that said animal was shipped at defendant's risk."

The agreement made between plaintiff and defendant for the shipment of the jack is as follows:

"Live Stock Taken Only at Owner's Risk.

"The Pacific Express Company. Live Stock Contract.

"Agreement made at Bowling Green, Mo., the 19th day of April, 1899, between the Pacific Express Company and L. M. Emerson of Bowling Green, Mo. Whereas, the said L. M. Emerson has this day delivered to said Company at Bowling Green, Mo., the following animals: 1 jack (crd) of which he declares himself to be the owner, consigned to J. L. Bailey at Wells, Texas. Now it is agreed that said Company undertakes, as forwarders only, to forward said property to the nearest point of destination reached by said Company. It being understood that said Company relies upon the various rail road and steamboat lines of the country for its means of forwarding property delivered to it to be forwarded, it is agreed that it shall not be liable for any damage to said property caused by the detention of any train of cars or of any steamboat, upon which said property shall be placed for transportation, nor by the neglect or refusal of any railroad company or steamboat to receive and forward the same. If any sum of money besides the charges for transportation is to be collected from consignee on delivery of the said property and the same is not paid at once, said Company may, at its option, retain said property with ordinary and reasonable care, at shipper's risk and expense, or may return same to shipper, he to pay charges for transportation and all expense both ways. Said shipper is to load, transship and unload said property at his own risk, said Company furnishing the necessary laborers to assist.

"In consideration of said Company to forward said property above mentioned, and of the reduced rate of compensation at which...