Smith v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 05 October 1914
• Docket Number: No. 11125.,11125.
• Citation: 183 Mo. App. 180,170 S.W. 324
• Court: Missouri Court of Appeals
• Parties: SMITH v. CHICAGO, R. I. & P. RY. CO.

170 S.W. 324

183 Mo. A. 180

SMITH v. CHICAGO, R. I. & P. RY. CO.

No. 11125.

Kansas City Court of Appeals. Missouri.

October 5, 1914.

Rehearing Denied November 2, 1914.

1. CARRIERS (§ 131)—CARRIAGE OF GOODS—PETITION—SUFFICIENCY.

Plaintiff's petition, seeking recovery for damages to a shipment of dressed turkeys, does not warrant recovery for a loss of turkeys not delivered, where it did not specifically allege such loss, but only alleged depreciation in value for delay, although the evidence showed a loss in transit; Rev. St. 1909, § 1794, requiring the petition to contain a concise statement of the facts.

2. CARRIERS (§ 136)—CARRIAGE OF GOODS—DAMAGES—EVIDENCE.

In an action for damages to a shipment of turkeys, evidence held sufficient to go to the jury.

3. EVIDENCE (§ 370)—DOCUMENTARY EVIDENCE.

Where a shipment of turkeys was partly spoiled through delay, invoices as to the turkeys sold from the shipment were not admissible to show the number spoiled, unless supported by

the evidence of some one who knew them to be correct.

4. CARRIERS (§ 131)—DAMAGES TO SHIPMENT —ACTIONS—EVIDENCE.

In an action for damages for loss on a shipment of turkeys, evidence of an item of loss not pleaded is improperly received.

5. CARRIERS (§ 137) — INJURIES TO GOODS SHIPPED—ACTIONS—INSTRUCTIONS.

In an action for damages to a shipment of turkeys, the jury should be told what the measure of damages is, though it be plain from the petition for what loss plaintiff seeks to recover, and an instruction which merely limited the total amount plaintiff could recover is improper.

6. CARRIERS (§ 135)—CARRIAGE OF GOODS—DAMAGES—MEASURE.

Where a shipment of turkeys spoiled by reason of delay, the measure of damages is the difference between the market value of the turkeys at the destination in the condition they would have been had they been delivered in a reasonable time and their market value as they arrived.

7. CARRIERS (§ 135)—DAMAGES TO SHIPMENT —ACTIONS—PLEADING.

In an action for damages to a shipment of turkeys, no recovery can be had for an element not pleaded.

8. DAMAGES (§§ 210, 220) — MEASURE — INSTRUCTIONS.

In an action, where it was sought to recover several items of damages, an instruction authorizing, and a verdict returned for, a lump sum are erroneous; the instruction should require the jury to assess damages for each of the separate items.

9. DAMAGES (§ 104)—INSTRUCTIONS—SUFFICIENCY.

Where there was no evidence in support of one of the items of damage pleaded, an instruction which merely limited recovery to the amount sued for, less damages for that item, but did not inform the jury that no damages could be allowed therefor, is erroneous.

10. CARRIERS (§ 135)—DAMAGES TO SHIPMENT—DAMAGES.

In an action for damages to a shipment of turkeys, where plaintiff sought reimbursement for expenses in making a trip to look after the shipment, no recovery can be allowed on proof that he made the trip without proof of the amount of the expenditure.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by Jesse L. Smith against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Paul E. Walker, of Topeka, Kan., and Sebree, Conrad & Wendorff, of Kansas City, for appellant. Glenn R. Donaldson, of Kansas City, for respondent.

TRIMBLE, J.

This is an action to recover $1,497.60 as damages sustained in the shipment of certain perishable freight, consisting of dressed turkeys, from Pleasant Hill, Mo., to Armour & Co., in Kansas City, Kan. Of said amount, $1,437.18 was specified in the petition as having been lost by reason of negligent delay in transportation, $52.42 was for overcharge in freight, and $8 was for expenses in looking after the shipment, necessarily incurred and caused by the delay. These various items thus specified in the petition aggregate the sum sued for, to wit, $1,497.60, and are particularly set forth here because they show that the petition did not declare upon a fourth item of damages, namely, a loss of 326 pounds of turkeys which were never delivered because the car was broken into and robbed while in transit.

A controversy exists between plaintiff and defendant as to whether the petition covers a failure to deliver by reason of loss of turkeys in transit. The petition alleges that the car was loaded with 20,569 pounds of No. 1 dressed turkeys of the value of 14 cents per pound, 696 pounds of "Old Tom" turkeys at 12 cents, 528 pounds of No. 2 turkeys at 11 cents, and 71 pounds of "cull" turkeys at 5 cents per pound. The petition then goes on to allege that, by reason of the negligent delay, only 4,006 pounds of No. 1 turkeys were in good condition, "and that all the balance of said turkeys delivered, to wit, 17,532 pounds, were in a green and spoiling condition." A careful arithmetical calculation of the various numbers of pounds stated in the petition will disclose that the number of pounds loaded into the car was 21,864, and, when 17,532 pounds are deducted therefrom, there are still 326 pounds unaccounted for. Plaintiff contends that, because of this, the petition includes damages for failure to deliver the 326 pounds. This contention cannot be sustained. The petition contained no allegation that the defendant lost, or failed to deliver, any turkeys. On the contrary, it alleges that the loss of $1,437.18 was "a loss and damage to plaintiff through said delay," and this loss occasioned by delay was everywhere in the petition alleged to be by reason of the turkeys spoiling. Section 1794, R. S. Mo. 1909, requires the petition to contain "a plain and concise statement of the facts." The petition did not cover this item of damages.

The greater portion of the turkeys, all but 4,000 pounds, was purchased by plaintiff of a Mr. Shelton, at Windsor, Mo. The latter loaded his turkeys for plaintiff into the car at that point, and the car was billed from there to Kansas City, with directions to stop at Pleasant Hill, where plaintiff would finish loading it with turkeys from his poultry house. Windsor is a station on defendant's line about 40 miles from Pleasant Hill, and the latter is an intermediate point between Windsor and Kansas City, being from 34 to 40 miles distant from the said city. The time ordinarily required to make the run from Pleasant Hill to Kansas City was three or four hours. A local freight ran every day leaving Pleasant Hill at any hour between 3 p. m. and dark, and would arrive in Kansas City in time to deliver freight the next morning.

Plaintiff did not attend to the loading of the turkeys at Windsor. He loaded only the 4,000 pounds put on the car at Pleasant Hill. When the car reached this point, plaintiff opened six or eight barrels of the Shelton turkeys therein and found them to be in good condition, but did not examine the rest of them. When the car was finally delivered to Armour & Co., it was found that 4,006 pounds of turkeys were still good, notwithstanding the delay. This practically corresponds with the number of pounds plaintiff loaded at Pleasant Hill.

Defendant urges that its demurrer to the evidence should have been sustained. This view rests upon the claim that there is no testimony as to the number of turkeys loaded at Windsor, nor their condition at that time, nor how they had been treated prior to that time; and since the number of pounds of good turkeys at the end of the journey is the same, or practically so, as those loaded by plaintiff himself at Pleasant Hill, defendant contends that the spoiling of the turkeys must have been in those loaded at Windsor, and that the evidence did not show the turkeys were spoiled by the alleged negligent delay. It is no doubt true that, in order for plaintiff to make out a case for negligent delay, he must, in addition to such delay, show that the shipment was in good condition when delivered to defendant, and that it was in bad condition when delivered to Armour & Co. But we cannot agree with defendant that there was no substantial evidence of these facts sufficient to enable plaintiff to go to the jury.

As to the number of pounds loaded at Windsor, there was ample evidence to show that. Plaintiff put in 4,000 pounds at Pleasant Hill. He saw one-third of the car weighed at Armour's. He was an experienced poultry dealer. He showed the number of pounds of good turkeys sold out of the car and the number of pounds of spoiled turkey sold, and for which he received the money. The bill of lading specified a larger number of pounds than he claimed, and defendant's correspondence showed this excess in weight, above what plaintiff claimed, to be an error in the bill. This was sufficient to show the number of pounds put in the car at Windsor.

The car was set on the loading track...