Peycke Bros. Commission Co. v. Lehigh Valley R. Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13679.,13679.
• Citation: 224 S.W. 71
• Parties: PEYCKE BROS. COMMISSION CO. v. LEHIGH VALLEY R. CO.
• Court: Missouri Court of Appeals

224 S.W. 71

PEYCKE BROS. COMMISSION CO. v. LEHIGH VALLEY R. CO.

No. 13679.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Peycke Bros. Commission Company against the Lehigh Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Hal R. Lebrecht and L. A. Laughlin, both of Kansas City, for appellant.

Edw. J. White, of St. Louis, and Thos. Hackney and Richard H. Beeson, both of Kansas City, for respondent.

BLAND, J.

This is an action for damages alleged to have been sustained by plaintiff on account of the freezing, loss, damages, injury, delay, improper handling, and improper transportation and delivery of a car of Spanish onions, containing 500 crates. The case originated before a justice, where plaintiff recovered. Defendant appealed to the circuit court, where there was a verdict and judgment for it. The case was submitted to the jury on plaintiff's evidence. There was no testimony introduced on the part of defendant.

The evidence shows that the onions came by steamer from Spain and entered this country at New York. At the latter place they were loaded on one of defendant's cars and a straight bill of lading was issued, in which one Opolinsky was named as consignor and plaintiff, at Kansas City, as consignee. Plaintiff was afterwards notified that the car had been diverted to one M. Piowaty & Sons, at Chicago. When it arrived at Chicago its contents were replevined by plaintiff. On examination of the onions it was found that they were frozen and that there was one crate short. Mr. Peycke, one of plaintiff's witnesses, testified that the railroad company admitted that one of the crates was short; that this shortage was shown by a notation made by the railroad company. There was a demurrer to the evidence offered on the part of defendant, which was overruled. Plaintiff did not ask that any verdict be directed for it, but submitted its case on two instructions. The first one left it to the jury to find whether there was a delivery to the defendant of "500 crates of onions in good condition and free from freezing or decay," and when the car arrived at Chicago "some of the onions were damaged by freezing, or there was a shortage in the number of crates." Instruction No. 2 was on the measure of damages.

Plaintiff insists that the court erred in failing to sustain its motion for a new trial, for the reason that plaintiff claims that the evidence was undisputed and shows that plaintiff was entitled to recover, and for these reasons the verdict was for the wrong party. We cannot say that the evidence was undisputed merely because defendant introduced no evidence. Schroeder v. C. & A. Ry. Co., 108 Mo. 322, 18 S. W. 1094, 18 L. R. A. 827; Fleishman v. Ice & Fuel Co., 148 Mo. App. 117, 134, 127 S. W. 660; McCrosky v. Murray, ...