Spalding v. The Chicago, Burlington And Quincy Railroad Company

• Decision Date: 31 March 1903
• Citation: 73 S.W. 274,101 Mo.App. 225
• Parties: ALBERT C. SPALDING, Respondent, v. THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

73 S.W. 274

101 Mo.App. 225

ALBERT C. SPALDING, Respondent, v. THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 31, 1903

Appeal from Shelby Circuit Court.--Hon. Nat. M. Shelton, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Mosman & Ryan and Dale & Humphreys for appellant; O. M. Spencer of counsel.

(1) "Every substantive fact which the pleader must prove to maintain his action should, under the practice act, be alleged so that the issue can be made thereon." Harrison v. Railway, 50 Mo.App. 336. The words of the Supreme Court in Link v. Vaughn, 17 Mo. 586, are very applicable here. It says: "The code requires the petition to contain a statement of the facts constituting the cause of action, in ordinary and concise language, without a repetition, and in such manner as to enable a person of common understanding to know what is intended." Clements v. Yates, 69 Mo. 623; Huston v Tyler, 140 Mo. 264; Cole v. Armour, 154 Mo 350. (2) "It is no objection that the petition sets out the contract and a compliance with its terms, and the termination of the contract by the defendant, provided it shows that the plaintiff elected to treat it as cancelled and seek to recover for services rendered." Glover v Henderson, 120 Mo. 375.

V. L. Drain and Dysart & Mitchell for respondent.

(1) If the defendant had delivered the carload of horses at East St. Louis within a reasonable time and in a reasonably sound condition, then under the terms of the contract the plaintiff would have been bound to accept them and he would have had no valid claim or demand against the defendant. (2) The issues of fact submitted to the jury were found in favor of the plaintiff, and there was abundance of evidence to support the finding of the jury, and there was abundance of evidence to justify the instructions submitted to the jury on behalf of the plaintiff. George v. Railroad, 57 Mo.App. 358; Sloop v. Railroad, 67 S.W. 956.

BLAND, P. J. Goode, J., and Reyburn, J., concur in reversal but are of opinion that plaintiff was entitled to make proof and recover under the allegations of the third count of his petition.

OPINION

BLAND, P. J.

--The petition was in three counts. The appeal is from a judgment rendered on the third count. This count reads as follows:

"For another and further cause of action against the defendant, plaintiff states that on the second day of February, 1901, defendant, being a corporation and common carrier as aforesaid, received of and from the plaintiff, at its station at Browning, Missouri, on the Chicago, Burlington & Kansas City railway, then and now owned by the defendant, eighteen horses, of the value of $ 1,800, the property of the plaintiff, and then and there undertook and agreed to transport and carry said horses to East St. Louis, in the State of Illinois, and to deliver them to plaintiff at said destination without delay and in a safe condition; but plaintiff avers that the defendant negligently failed to so transport, convey and deliver said horses at the said city of East St. Louis, according to its contract and agreement with the plaintiff, by reason whereof the said eighteen head of horses have been totally lost to the plaintiff and he has been damaged thereby in the sum of $ 1,800, for which he prays judgment.

"And plaintiff avers that the whole amount of damage sustained by him by reason of the premises is the sum of $ 2,050, for which he prays judgment, with other general and proper relief."

The answer to the third count is as follows:

"Defendant, for answer to the third count of the petition, admits that on the second day of February, A. D. 1901, the plaintiff delivered to this defendant at its station at Browning one car loaded with horses for transportation to East St. Louis; and defendant charges and avers the fact to be that said horses were delivered to it under and by virtue of a special contract then and there entered into between the plaintiff, Albert C. Spalding, and this defendant, for the transportation of said horses, under and by virtue of which contract it was agreed that in consideration of the free transportation of one person, designated by the plaintiff, by said railroad company, to accompany the stock and care for the same, that the said car and the said animals contained therein should be in the sole charge of said person for the purpose of attention and care for said animals; and that this defendant should not be responsible for such care and attention; and it was further agreed that said animals were to be loaded and unloaded, watered and fed and cared for by the owner thereof or his agent in charge, and that this defendant should not be liable for loss from theft, heat or cold, jumping from the cars or other escapes, injury in loading or unloading, injury which the animals might cause to themselves or do to each other, or any injury which resulted from the nature and propensities of the animals; and that this defendant did not agree by force of said contract to deliver said stock at destination in any specified time or for any particular market, but only to transport and deliver said horses with reasonable diligence, according to the usual manner of running its trains.

"This defendant says that it was further mutually understood and agreed by and between said plaintiff and this defendant that said animals should be carried and transported from the station of Browning to the station of Hunnewell, at which station the car containing said animals was to be set out for the purpose of giving plaintiff an opportunity to place in said car other and additional horses. Defendant says that it carried and transported said horses with reasonable dispatch on its regular train to the said station of Hunnewell, and at said station set said car out so that the plaintiff might finish loading the same by placing other horses therein.

"Defendant says that when said horses arrived at the station of Brookfield, the plaintiff telegraphed to the general freight agent of this defendant that the carload of horses was there at Brookfield at his disposal, and then and there abandoned said horses and all care and attention to the same.

"That defendant tried to get plaintiff to take care of said horses, but he refused to have anything to do with them; that defendant thereupon unloaded said horses and had them fed and cared for at the said station of Hunnewell, and endeavored to get plaintiff to take charge of said horses which he refused to do; that thereupon the defendant shipped said horses to St. Louis and had them sold for the account of the plaintiff on the market in St. Louis, to which they had originally been consigned; that upon said sale the defendant realized the sum of $ 873.58 from the sale of said horses, after paying all expenses of freight and attention to said horses, and subsequently defendant tendered to plaintiff the said sum of money so realized from the sale of said horses, which plaintiff refused to accept, and defendant now here brings into court and tenders to the plaintiff herein the said sum of eight hundred and seventy-three dollars and fifty-eight cents and deposits the same with the clerk of this court for plaintiff and, having fully answered, the defendant asks to be dismissed with costs."

The reply was a general denial of the new matter set up in the answer.

The summary of Albert C. Spalding's (plaintiff's) evidence, as set out in the abstract, is as follows:

"The horses mentioned in the third count I bought in Browning on Saturday to finish the contract, in order to fill the load out as near as I could. I bought a couple of big horses and the rest, except one nice black mare, were British horses for the British cavalry, to ship to the African war. They had contractors in St. Louis to buy that class of horses and they inspect them there. When the contractor gets his orders filled, why the buyers stop buying on the market and the market closes and horses have decreased all the way from $ 10 to $ 25 per head. These horses were bought Saturday afternoon and were a good class of British horses, also two big horses that I would call express ones and one nice road mare. I ordered a car there that morning and that afternoon they were loaded and were ready to go at three o'clock for East St Louis to finish loading at Hunnewell, and I was to pay $ 5 extra to stop these horses at Hunnewell; that's what they charged me for putting in horses, or setting out, either. To move, run the car up and put in the load they charged me $ 5 extra from Browning to East St Louis. Browning is on the Chicago, Burlington & Kansas City Railway, which runs from Burlington to Laclede. When we got to Laclede there was one train going east there, but it pulled out in a few minutes. I told the operator that I wanted this load of horses out on the first train; that I wanted them out on the next train sure, and he said that there would be another train along directly and they would go on that. After a bit there was another train came along going east, an extra going east; that train passed. They were set on a sidetrack at Laclede, and switched around from one track to another, and I kinder watched the horses to see if they cut up any, and a third train went east. I asked the agent, 'Are you going to get these horses out to-night? They ought to be in St. Louis Tuesday morning, and I don't want them bucked around all night.' And he said: 'We will get them out as soon as we can,' and I think about the third train picked these horses up at Laclede and took them over to Brookfield, about five miles. I went down into the yard to see about them. I had no idea at all but what they would go out on the train. I asked one of the...