Thero v. Missouri Pacific Railway Company

• Decision Date: 06 June 1910
• Citation: Thero v. Missouri Pacific Railway Company, 129 S.W. 266, 144 Mo.App. 161 (Kan. App. 1910)
• Parties: W. F. THERO, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

129 S.W. 266

144 Mo.App. 161

W. F. THERO, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

June 6, 1910

Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.

Judgment affirmed.

Jamison Hutchison & Ostergard and George N. Elliott for appellant.

(1) The remittitur should have been accepted and judgment entered for the reduced amount. Schergen v. Const. Co., 108 Mo.App. 262; Tilford v. Ramsey, 43 Mo. 420; Higgs v. Hunt, 75 Mo. 107; Rider v. Kirk, 82 Mo.App. 124; Furnish v. Railroad, 102 Mo. 456; Dawson v. Waldheim, 89 Mo.App. 248; 18 Ency. Pl. and Pr., p. 148. (2) The record in this case being sufficient and the determination of the amount of the damage under the evidence and instructions being a matter of mathematical calculation only, the correction may be made by the appellate court. Nicholds v. Plate Glass Co., 126 Mo. 55; Burdict v. Railroad, 123 Mo. 221; Higgs v Hunt, 75 Mo. 107; Rider v. Kirk, 82 Mo.App 125; Meyer v. Insurance Co., 95 Mo.App. 727; Shuck v. Pfenninghausen, 101 Mo.App. 700; Brown v. St. Louis Transit Co., 108 Mo.App. 316; Moss v. Railroad, 128 Mo.App. 389; 18 Ency. Pl. and Pr., pp. 128 and 134. (3) A shipper is not required to sue on the written shipping contract, such written contract being a mere modification in some respects of the obligation of the carrier, imposed on it by law. Lochmer v. Exp. Co., 72 Mo.App. 13; McFadden v. Railroad, 92 Mo. 343; Galliers v. Railroad, 111 F. 849. (4) If the action is in tort for breach of duty imposed by law, it is unnecessary to notice the special contract. Clark v. Railroad, 64 Mo. 446; Garrison v. Transfer Co., 94 Mo. 130. (5) If the carrier wishes to rely on terms of the written contract for any point of defense, he must set it up. Oxley v. Railroad, 65 Mo. 629; Goodman v. Railroad, 71 Mo. 460; Milling Co. v. Railroad, 122 Mo. 258. (6) The following cases show the rule for determining whether a suit is on contract or for a breach of the carrier's common law duty. Clark v. Railroad, 64 Mo. 446; Heil v. Railroad, 16 Mo.App. 363; Railroad v. Higgs, 165 Ind. 694; Rideout v. Railroad, 81 Wisc. 238. (7) A carrier may refuse to receive goods which he cannot transport, without rendering himself liable in damages for such refusal, but having received such goods for transportation the same excuse is not open to him, and he may be held to answer for damages, due to delay, although occasioned by the lack of proper facilities. Faulkner v. Railroad, 51 Mo. 311; Tucker v. Railroad, 50 Mo. 385. (8) A carrier is bound to know when he accepts property for shipment that he has or can obtain facilities for transportation within a reasonable time, and as to any cause of delay which he might anticipate he should then advise the shipper, and if he does not do so, the delay will not be excused. Ayres v. Railroad, 71 Wis. 372; Bussey v. Memphis Co., 4 McCrary 405 (U.S.); Halliwell v. Grand Trunk, 10 Bissel 170 (U.S.). (9) No excuse will prevail when the carrier accepts goods with knowledge of its inability to deliver promptly, without notice to the shipper. 7 Current Law, 537; Hurst v. Railroad, 117 Mo.App. 25; Bushnell v. Wabash, 118 Mo.App. 618; Pinkerton v. Railroad, 117 Mo.App. 288; Guinn v. Railroad, 20 Mo.App. 453; Schnabe v. Union Line, 13 Mo.App. 159; Gray v. Railroad, 119 Mo.App. l. c. 149; Nelson v. Railroad, 28 Mont. l. c. 326.

Elijah Robinson for respondent.

OPINION

JOHNSON, J.

This suit is for damages alleged to have been caused by the negligent delay of defendant, a common carrier, in the transportation of a carload of horses shipped by plaintiff from Horace and Bison, Kansas, to East St. Louis. The first trial of the case resulted in a verdict of eight hundred dollars for plaintiff. A new trial was granted and at the second trial, plaintiff again prevailed and was given a verdict of fifteen hundred dollars, but the court again interfered and, on the motion of defendant, granted a new trial on the ground that the verdict was excessive. Before the hearing of the motion for a new trial, plaintiff filed a remittitur of one hundred and sixty dollars, but this action of plaintiff did not prevent the court from granting a new trial. Plaintiff appealed and argues that the verdict, though excessive as rendered, was reduced to proper proportions by the remittitur, but offers further to reduce the verdict should we think it still too large.

The cause of action pleaded in the amended petition on which the case was tried is founded on a breach of the common law duty of defendant as a carrier and, consequently, is an action sounding in tort. Defendant argues that the amendment should not have been allowed, for the reason that the cause pleaded in the original petition is founded on a contract for transportation. We dismiss the point with the observation that the cause stated in the original petition is the breach of defendant's common law duty and not the breach of a contract and, therefore, that the amended petition did not change the nature of the action.

Plaintiff, a horse dealer, had purchased eighteen head of horses in Western Kansas and, desiring to ship them to market, engaged a car of defendant to transport them to East St. Louis. Four of the horses were at Horace, a station in the extreme western part of Kansas on defendant's Colorado line, and fourteen were at Bison, a station one hundred and forty-six miles east of Horace and about twenty-six miles west of Hoisington, a division station. The main line of defendant's road ran east from Hoisington through Geneseo and Osawatomie to Kansas City and thence to St. Louis, but a branch line diverged to the southeast and ran to Wichita and Fort Scott and thence on to St. Louis. A son of plaintiff attended to the shipment of the four horses at Horace. He and the agent of defendant executed a written contract of affreightment to cover the whole shipment, provision being made for stopping at Bison to load the remaining fourteen head. The horses were loaded at Horace about ten o'clock p. m. , May 28, 1903, and shortly after, started on their journey. At the time defendant received the shipment, it was known to its agent at Horace that the main line was washed out some place east of Geneseo and, accordingly, the contract entered into by plaintiff's son and defendant's agent provided for the shipment going over the branch line via Wichita and Fort Scott. When the train reached Bison, the next morning, the agent of defendant at that point knew both of defendant's lines to the east were blockaded by washouts and high water. Plaintiff was at Bison to attend to loading the fourteen horses. He states he had just come in from interior places and did not know the plight of defendant caused by high waters. He claims the agent did not inform him that the roads were blockaded but allowed him to load the fourteen horses. For some reason, not important, plaintiff unloaded one of the horses which his son had loaded at Horace and left it at Bison. He went on the train to Hoisington where he learned for the first time that defendant was disabled by floods from going forward with the shipment. Defendant's agent at Hoisington ascertained by telephoning that the Santa Fe railroad was in operation from Great Bend to Wichita and that the car could be sent over that line. Great Bend is ten miles south of Hoisington and the two places were connected by a branch line of defendant. Accordingly, the car was run down to Great Bend and the horses were shipped over the Santa Fe road to Wichita, where they were delivered to defendant and carried to St. Louis where they arrived June 11th. In the usual course of transportation, the horses should have arrived in St. Louis nine or ten days before they ...