Paulson v. Wabash Ry. Co.

• Decision Date: 02 December 1918
• Docket Number: No. 12825.,12825.
• Citation: 207 S.W. 81
• Parties: PAULSON v. WABASH BY. CO.
• Court: Missouri Court of Appeals

207 S.W. 81

PAULSON v. WABASH BY. CO.

No. 12825.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

"Not to be officially published."

Action by Elmer A. Paulson against the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Lavelock & Kirkpatrick, of Richmond, J. L. Minnis, of St. Louis, and S. J. Jones, of Carrollton, for appellant.

Garner, Clark & Garner, Crowley & Jacobs, and Roberts, Milligan & Milligan, all of Richmond, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted to recover damages of defendants for the overflow of his lands and destruction of his crops. He recovered judgment in the trial court.

Defendant is a corporation operating a railroad through Ray county, and plaintiff owns land adjoining parts of its right of way. When plaintiff's action accrued, the railroad corporation was in the hands of a receiver appointed by the federal court. There was a sale of the road under this receivership to the defendant railway company, under the terms of which sale the defendant purchaser took and accepted the property upon the express condition that it should be charged with the payment of all unpaid current liabilities, indebtedness, and obligations of the receivers, incurred by them in the operation of the railroad.

There was evidence tending to support plaintiff's claim for damages, which, since the verdict in his favor, we must accept as the facts in that behalf; and we will direct our attention to the second instruction given for him. In cases of this kind there is no liability for an extraordinary and unprecedented rainfall. The instruction does not contain that exception, and yet directs a verdict. It submitted the case without explanation or qualification and would naturally mislead the jury. It falls directly under the decisions of Ellet v. Railroad, 76 Mo. 518, 534, and Cooney v. Pryor, 203 S. W. 330, and cases cited.

The action was brought in Ray county through which the defendant railroad runs. The receivers resided in St. Louis. Service was had on the railroad in Ray county, and a summons was issued to St. Louis and served on the receivers in that city. In this situation, defendant makes the point that, since the injury happened to plaintiff when the road was in charge of the receivers, the railroad defendant, purchasing afterwards at the receivership sale, is not liable, and therefore should not...