State ex rel. Hartford Life Insurance Company v. Trimble

• Decision Date: 09 April 1923
• Citation: 250 S.W. 393,298 Mo. 418
• Parties: THE STATE ex rel. HARTFORD LIFE INSURANCE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals, and JOHN BARTON PAYNE, Agent, etc
• Court: Missouri Supreme Court

250 S.W. 393

298 Mo. 418

THE STATE ex rel. HARTFORD LIFE INSURANCE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals, and JOHN BARTON PAYNE, Agent, etc

Supreme Court of Missouri, Second Division

April 9, 1923

Transferred from Kansas City Court of Appeals.

Preliminary rule discharged.

C. G Myers, Albert R. James and Amos Townsend for relator.

(1) Where a series of instructions contains a complete exposition of the law and covers every phase of the case, the verdict thereunder will be sustained, even though one instruction when taken separately may be incomplete. Hughes v. Ry Co., 127 Mo. 452; Wingfield v. Wabash Railroad Co., 257 Mo. 363; Tawney v. United Rys. Co., 262 Mo. 609. (2) A party cannot complain of an instruction, perfect as far as it goes, where he does not ask for a more specific instruction. Wahl v. Transit Co., 203 Mo. 261; First Natl. Bank v. Ragsdale, 171 Mo. 168; Wheeler v. Bowles, 163 Mo. 390; Farber v. Railroad, 139 Mo. 285. (3) Where there is no controversy as to a fact, an instruction assuming such fact to be true is not error. Carroll v. Railroad Co., 88 Mo. 239; Barr v. Armstrong, 56 Mo. 577; First Natl. Bank v. Hatch, 98 Mo. 376; Pope v. Cable Ry. Co., 99 Mo. 400; Fullerton v. Fordyce, 121 Mo. 13; Ragan v. Railroad Co., 144 Mo. 634; Stoebier v. Transit Co., 203 Mo. 714; Davidson v. Co., 211 Mo. 356; Orcutt v. Building Co., 214 Mo. 53; Midwest Natl. Bank v. Tr. Co., 233 S.W. 411.

J. G. Green, W. H. Meschede and Frank W. McAllister for respondent.

(1) The sole question involved here is whether the opinion of the Kansas City Court of Appeals is in conflict with controlling decisions of this court. State ex rel. v. Reynolds, 218 S.W. 339; State ex rel. v. Ellison, 224 S.W. 820; State ex rel. v. Sturgis, 221 S.W. 91; State ex rel. v. Bradley, 223 S.W. 99; State ex rel. v. Trimble, 236 S.W. 651. (2) The opinion of the Court of Appeals misapplied the rule announced in a controlling decision of this court, yet, if it appears from its opinion that they recognized the rule, there is no conflict. State ex rel. v. Reynolds, 278 Mo. 695; State ex rel. v. Trimble, 236 S.W. 653. The opinion of the Court of Appeals is not in conflict with the Hughes, Wingfield or Tawney cases, but fully recognized the rule announced in those cases and is in accord therewith. The Court of Appeals, in its opinion on motion for rehearing, expressly recognized the rule announced in the Hughes Case and followed in the Wingfield and other cases, and correctly held that it did not apply to the situation before it. The instruction in question was peremptory in form, that is, it required the jury to return a verdict for plaintiff if it found certain facts from the evidence. It has never been held that an instruction drawn in this form, which omits an essential element of plaintiff's case is cured by another instruction which is not subject to the same criticism, and neither the Hughes Case, the Wingfield Case, nor any case cited by relator so holds. Bellows v. Ins. Co., 203 S.W. 985. (3) The opinion of the Court of Appeals is not in conflict with decisions of this court on the point stated in relator's second assignment of error. Relator's second assignment of error is also fully answered by the opinion in Bellows v. Insurance Co., supra. In that case an instruction for plaintiff omitted to require proof of an essential fact, although another instruction given for plaintiff required proof of such fact. This court held the error was not cured by an instruction on the part of the defendant. State ex rel. v. Ellison, 272 Mo. 587. (4) The Court of Appeals expressly found that it was not conceded that the hogs were delivered to the defendant below in good condition, and this court is bound by that finding. State ex rel. v. Reynolds, 257 Mo. 19; State ex rel. v. Ellison, 278 Mo. 42; State ex rel. v. Reynolds, 278 Mo. 695; State ex rel. v. Allen, 242 S.W. 77.

RAILEY, C. Davis and Higbee, CC., concur.

OPINION

Certiorari.

RAILEY C.

-- It appears from the record that the relator herein instituted in the Circuit Court of Saline County, Missouri, on May 17, 1920, an action against Walker D. Hines, Agent for the United States Government for settlement by actions at law of claims arising during Federal control of railroads, and agent of Walker D. Hines, Director General of Railroads, for the United States Railroad Administration, while operating the Missouri Pacific Railroad Company. Afterwards, on November 22, 1920, by agreement of parties, the respondent, John Barton Payne, agent, etc., was substituted for said Walker Hines, agent, etc.

The relator, an insurance company, subrogated to and assignee of the rights of a shipper holding plaintiff's live stock transit policy covering insurance on a shipment of hogs, sued to recover the amount paid by it under said policy for a loss on said shipment during transportation, for which it was alleged the defendant carrier was responsible. The shipment was of 73 hogs, by W. O. Van Arsdell, on September 30, 1919, over the Missouri Pacific Railroad, then operated by the U.S. Government from Naptonville, Missouri, to National Stock Yards, East St. Louis, Illinois, consigned to Milton Marshall Live Stock Commission Company. The relator recovered a judgment before a jury for $ 700.77. The cause was appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was reversed and remanded. A motion for rehearing was filed in the Court of Appeals, and also a motion to transfer the cause to this court. Both motions were overruled, and a writ of certiorari was sued out to quash the record of the Court of Appeals.

The opinion of the latter, on the merits, and also on motion for rehearing, and to transfer, are printed in full and will be found reported at length under the style of Hartford Fire Ins. Co. v. Payne, 243 S. W., at pages 357 and following. As a matter of convenience, and to save expense, we hereby adopt the opinion of Judge Trimble as to the statement of facts, and the remainder of the opinion, as far as it may be applicable to the questions before us. On page 359 of above volume, Judge Trimble said:

"This was an unaccompanied shipment in interstate commerce, and this must be kept in mind as having a direct bearing upon the question presented.

"(1) The cause of action is upon the carrier's common-law liability; and while the shipment is one of live animals, which forms one of the exceptions to the rule of the carrier's common-law liability as an insurer, yet proof of delivery to the carrier in good condition and of a delivery by the carrier in bad condition made a primafacie case for the plaintiff, which cast the burden on the carrier to show that the loss or injury was caused by the animals' own vice or inherent infirmity and without fault on the part of the carrier, in which event the carrier would not be liable."

The Court of Appeals reversed and remanded the cause, however (243 S.W. 357), on the ground that error was committed by the trial court in giving to the jury, on behalf of plaintiff, instruction numbered three, which reads as follows:

"3. The court instructs the jury that it was the duty of the defendant as a common carrier to safely transport the hogs in controversy and deliver same to the consignee at the point of destination in good condition, and before the defendant can be relieved of liability for damages for the death of said hogs, the burden of proof is upon him to show by the greater weight of the credible testimony that said hogs died from natural and inherent causes, to-wit, disease of the lungs, and unless the defendants has so shown, your verdict must be for the plaintiff."

The opinion of the Court of Appeals on motion for a rehearing and to transfer the cause to this court (243 S.W. 361) reads as follows:

"Respondent concedes that the instruction held to be erroneous, and for which the judgment was reversed and the cause remanded for a new trial, omits the element of the hogs' condition at the time they were delivered to the carrier, but strenuously insists upon the rule that 'where a series of instructions, taken together, contains a complete exposition of the law and covers every phase of the case, the verdicts obtained thereon will be sustained, even though the instruction when taken separately may be incomplete.' [Hughes v. Chicago Ry. Co., 127 Mo. 447, 452, 30 S.W. 127, 128.]

"There is no doubt about the correctness of the rule, but it does not apply to a case where the defective instruction permits or authorized a verdict for plaintiff. The instruction here told the jury unqualifiedly that it was the duty of the carrier to safely transport the hogs and deliver them in good condition, and before it could be relieved of liability for the death of the hogs the burden was on the carrier to show that the hogs died of disease of the lungs, and, unless defendant had so shown, 'your verdict must be for plaintiff.'

"There is nothing in the contention that the case was tried on the theory that the good condition of the hogs when delivered to the carrier was conceded. Consequently both motions should be, and are, overruled. All concur."

I. It is charged in relator's petition for this writ, that the ruling of the Court of Appeals in reversing and remanding said cause, on account of the giving of plaintiff's instruction three, is in conflict with the following decisions of this court, to-wit: Hughes v. C. & A. Ry Co., 127 Mo. 447; Wingfield v. Wabash Ry. Co., 257 Mo. 347, ...