Peycke Bros. Commission Co. v. Davis

• Citation: 215 Mo. App. 545,257 S.W. 824
• Decision Date: 21 January 1924
• Docket Number: No. 14933.,14933.
• Parties: PEYCKE BROS. COMMISSION CO. v. DAVIS, Agent.
• Court: Court of Appeal of Missouri (US)

257 S.W. 824

215 Mo. App. 545

PEYCKE BROS. COMMISSION CO. v. DAVIS, Agent.

No. 14933.

Kansas City Court of Appeals. Missouri.

January 21, 1924.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

Action by Peycke Brothers Commission Company against James C. Davis, as Agent and Director General of Railroads. From a judgment of dismissal, plaintiff appeals. Affirmed.

Joseph P. Duffy, of Kansas City, for appellant.

Langworthy, Spencer & Terrell, of Kansas City (H. J. Nelson, of St. Joseph, of counsel), for respondent.

ARNOLD, J.

This is a suit in damages to recover loss sustained on a carload of onions shipped from New York City on January 2, 1920, and diverted to Omaha, Neb.

Plaintiff is a corporation engaged in the commission business with headquarters at Kansas City, Mo. Defendant was Director General of Railroads, designated by the President of the United States under the provisions of section 206 of the Transportation Act of 1920 (U. S. Comp. St. Ann. Supp. 1923, § 10071¼cc). The petition, filed January 17, 1922, in the circuit court of Jackson county, is in two counts. The first charges:

"That the railroads and systems of transportation over whose lines or routes and which during federal control were operated by and in charge of the Director General of Railroads were as follows: Lehigh Valley Railroad Company, the New York, Chicago & St. Louis Railroad Company, and the Chicago, Burlington & Quincy Railroad Company, and at the time of the movement of this shipment the Director General of Railroads was a common carrier engaged in the carriage of freight for hire.

"That on or about January 2, 1920, plaintiffs caused to be delivered to the director general of railroads in charge of the Lehigh Valley Railroad Company at New York City, New York, one carload of onions for shipment. Said shipment was accepted and forwarded over the lines mentioned in paragraph two hereof, they being operated by the Director General of Railroads while under the federal control. * * * This shipment was afterwards diverted to Omaha, Nebraska, in accordance with published tariffs in effect and on file with the Interstate Commerce Commission, to which the Director General of Railroads was a party.

"That at the time of delivery of said shipment at shipping point and at time of issuing of the bill of lading shipment was in good, sound condition and it was the duty of the defendant to transport said shipment to destination in as good condition as when received by carrier at shipping point and said shipment was in fit condition to carry through to destination without deterioration, if it had received proper treatment at the hands of the carriers. That the shipment when it reached destination was not in good, sound condition, but on the contrary about 5 per cent. of the stock showed sprouts two to five inches long and about 10 per cent. showed decay, affecting the center of the onions, and there were a few completely decayed. There were also onions frozen. In fact nearly all of the onions were touched by frost and many of the onions were completely affected and some only slightly.

"That because of these premises and the condition of the shipment, when shipment reached destination as aforesaid, and by reason thereof, the damage was $475.00 and also plaintiff paid $75.00 for assorting the good onions from the bad, making in all the extent of damage $550.00."

Further, it is stated claim was filed within 90 days after delivery, with the Chicago, Burlington & Quincy Railroad Company.

Count 2 of the petition charges specific acts of negligence, as follows: (1) Failure of the carrier to protect said shipment from freezing; (2) failure to furnish heat and failure to cover the onions at the time of loading and unloading at shipping point; (3) failure to transport the shipment within a reasonable time; (4) failure to furnish heat while the shipment was in transit; (5) failure to furnish proper ventilation and to close ventilators in cold weather; (6) negligently giving the shipment rough handling in the course of transit, causing some of the onions to become bruised.

A demurrer to plaintiff's petition was filed in due time, as follows:

"Separate demurrer of James C. Davis, Agent, designated by the President under Transportation Act of 1920, to defend causes of action arising out of the operation of the Chicago, Burlington & Quincy Railroad Company during the period of federal control."

(I) "Comes now the defendant, James C. Davis, Agent, designated by the President under Transportation Act of 1920, and separately demurs to the first count of plaintiff's petition, for the reason that said petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against this defendant."

(II) "Comes now the defendant, James C. Davis, Agent, designated by the President under the Transportation Act of 1920, and separately demurs to the second count of plaintiff's petition, for the reason that said petition does not state facts sufficient to constitute a cause of action in favor of plaintiff and against this defendant."

Said demurrer was taken up and heard by the court on June 30, 1922, and judgment rendered as follows:

"Now on this day defendant's demurrer to plaintiff's petition is by this court sustained, to which ruling of the court plaintiff refuses to further plead in this case, thereupon, the court dismisses plaintiff's petition. It is therefore ordered and adjudged by the court that the plaintiff's petition herein be and the same is hereby dismissed and that the defendant have and recover of and from plaintiff all costs herein incurred and that execution issue therefor, to which action and ruling of the court plaintiff excepts."

Whereupon plaintiff filed its motion to set aside the ruling of the court sustaining said demurrer. Said motion is as follows:

"Comes now the plaintiff and states to the court that at this term of court in the assignment division there was entered of record a judgment dismissing this suit.

"That the court was under the impression that a special demurrer had been filed against the petition when as a matter of fact a general demurrer was filed against the petition and the court therefore was under a wrong impression as to the nature of the pleadings which was passed upon, and for this reason plaintiff asks that judgment heretofore entered be set aside."

This motion was overruled by the court in the following language:

"Now plaintiff's motion to set aside the order heretofore made herein dismissing this cause is by the court overruled, to which overruling and order of this court plaintiff excepts."

Tollowing this ruling of the court plaintiff perfected his appeal. Four assignments of error are presented for our consideration, to wit: (1) That the judgment and decision of the court are contrary to law, (2) that the decision should have been that the petition did state a cause of action; (3) the court should have overruled the demurrer and (4) the judgment and decision should have been for plaintiff.

First, we are confronted with a motion to dismiss the appeal for alleged failure to comply with rule 17 of this court. In support of this motion, it is urged that plaintiff is appealing from the order dismissing its petition; that appeal will lie only as to final orders in a case, and that the assignments of plaintiff fail to mention such error committed by the trial court herein.

Rule 17 of this court provides that the brief on behalf of appellant, or plaintiff in error, shall distinctly and separately allege the errors committed by the inferior court, and no reference will be permitted in the oral argument to errors not thus specified, nor any reference by either counsel to any authority not cited in his brief, unless for good cause shown the court shall otherwise direct. Rule 18 provides for dismissal of an appeal or writ of error for failure to comply with the provisions of rules 14, 15, 17 and that part of rule 16 relating to statements.

In the consideration of this...