Sinclair v. Missouri. K. & Ry. Co

• Decision Date: 18 June 1923
• Docket Number: No. 14718.,14718.
• Parties: SINCLAIR v. MISSOURI. K. & RY. CO.
• Court: Missouri Court of Appeals

253 S.W. 380

SINCLAIR v. MISSOURI. K. & RY. CO.

No. 14718.

Kansas City Court of Appeals. Missouri.

June 18, 1923.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Action by Charles Sinclair against the Missouri, Kansas & Texas Railway Company and Charles E. Schaff, receiver. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Harris & Price, of Columbia, and Z. W. Jamison, and Carl S. Hoffman, both of St. Louis, for appellants.

Charles D. Egley, of St. Louis (North Todd Gentry, of Columbia, of counsel), for respondent.

ARNOLD, T.

This is an action for damages on account of injury to some fat hogs belonging to plaintiff, during an interstate shipment over defendant's road.

On September 3, 1921, plaintiff delivered to defendant, a common carrier, 193 head of hogs at Turner station, on defendant's branch line of railroad, running from Columbia to McBaine, a junction point with the main line of said railroad in Boone county, Mo. The hogs were consigned to the Woodson, Fennewald Commission Company, at the National, Stock Yards, Ill. The testimony shows that the hogs were driven to the station of defendant at Turner early in the morning of the day above mentioned, and were there placed in the stock pens and afterwards loaded into three cars and left Turner about 2:30 p. m. " The train carrying the hogs arrived at McBaine at about 3 p. m. and were there placed on a side track and held until the arrival of the main line train which was to carry them to their destination. This train picked up the cars containing the hogs in question and left McBaine at about 12:05 a. m. on a Sunday. The testimony shows that the hogs were in good condition when they were loaded into the cars at Turner and that none was dead or crippled at that time. The hogs arrived at the loading chutes in Illinois, at about 1:50 p. m. in the afternoon of Sunday, September 4, 1921. When they were unloaded, as shown by the record, two were dead in one car and one in another. There is also evidence tending to show that two were crippled.

In due time claim was made for the damages in the sum of $88.27, which defendant refused to pay, and this suit was instituted to enforce payment. The negligence charged in the petition reads as Follows:

"That the defendant so negligently and carelessly transported said shipment that when said shipment was delivered by the agents and representatives of the defendant to the consignee, there were only 188 head of hogs delivered to the consignee in good condition, three of said hogs having been killed by the defendant in transit while under his supervision and control."

The answer was a general denial. Trial was to a jury. At the close of plaintiff's evidence defendant offered an instruction in the nature of a demurrer, which the court took under consideration. While the court was considering the demurrer, plaintiff asked and was allowed permission to reopen his case and thereupon plaintiff introduced in evidence certain documents tending to show that Charles E. Schaff was operating the railroad properties of the Missouri, Kansas & Texas Railway Company as receiver; and among other documents on this point was a certified order and decree of the United States District Court, dated September 25, 1915, appointing Charles E. Schaff receiver of the railroad and properties of the Missouri, Kansas & Texas Railway Company; whereupon plaintiff closed his case and defendants refiled their declaration of law in the nature of a demurrer to the evidence which was by the court refused. Defendants offered no evidence.

The verdict and judgment were for plaintiff in the sum of $79.12, which was the value of the three dead hogs at the rate of $9.45 per hundred weight, less $2.15, being the amount realized from the sale of the dead hogs. There was no allowance for the crippled hogs. Defendants having unsuccessfully moved for a new trial and in arrest, duly perfected their appeal to this court.

The first error charged is that the trial court erred in refusing defendant's peremptory declarations of law to find for defendants, and it is argued in support thereof that plaintiff's cause of action is based upon specific grounds of negligence.

This was an interstate shipment and, under the federal rule, the charge of negligence must be proved to entitle plaintiff to recover. Railroad v. Harris, 247 U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167; McMickle v. Railway Co. (Mo. App.) 209 S. W. 611; Baker et al. v. Schaff (Mo. App.) 211 S. W. 103. It remains only, to be found whether or not negligence was proved.

T. W. Finnigan, a hog salesman for the Woodson-Fennewald Company, the consignee, testified he remembered selling the hogs but did not remember the details; that his company kept a record of the weight of the hogs and how many were sold. He stated:

"I sold 161 hogs that weighed 39,780 at $9.45 per hundredweight; 14 head weighing 1,740 at $9.25; 7 head weighing 1,850 pounds at $6.75 per hundredweight; 1 weighing 390 at $6.10 per hundred weight; 2 crippled hogs weighing 470 pounds at $7.50 per hundredweight; 4 hogs weighing 790 pounds at $9.45 per hundredweight; and 3 dead hogs weighing 860 pounds at ¼ cent per pound. These hogs were sold on the market at the National Stock Yards. They were sold at a fair and reasonable price on the market of that day. I sold three dead hogs in this shipment. The dead hogs weighed 860 pounds. I received ¼ cent Per pound, or $2.15 for the three. In my opinion as a hog salesman, on the market at the National Stock Yards, these three dead hogs would have brought, had they been alive, $9.45 per hundredweight."

The deposition of Elmer S. Harbert, register clerk of the St. Louis National Stock Yards, Ill., at the hog house, was to the effect that his duties were to see that all the hogs were removed from the cars into the unloading chutes; that he made a record of the time of day when the hogs were unloaded and the number of the chute into which they were unloaded, and, if there were any dead or crippled hogs, he made a record of that. He testified there were three dead hogs removed from the cars involved in this shipment; that he was present when they were unloaded; that "this part" of the record on the three bills in the upper left-hand corner shows the time of arrival, date of arrival, number of chute into which the hogs were unloaded and the number of dead removed from the car."

Plaintiff's exhibits numbered 1, 2, and 3, consisting of the billing covering the three carloads of hogs, were identified and offered in evidence. Then the following colloquy occurred between the court and counsel for defendant:

"Counsel for defendant: To simplify things, we will admit that the slips there show that there was one dead hog found in one car; that it shows two dead hogs in another, and that they were unloaded at 1:50 p. m. as shown by the record.

"The Court: On the day following the...