Tuggle v. St. Louis, Kansas City & Northern R.R. Co.

• Decision Date: 31 May 1876
• Citation: 62 Mo. 425
• Parties: JOHN A. TUGGLE, Respondent v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 425

JOHN A. TUGGLE, Respondent

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Circuit Court of Daviess County.

Shanklin, Low & McDougal, for Appellant.

I. The admissions of Wicker were clearly inadmissible. Admissions of an agent, to bind the principal, must be within the scope of his employment, and must have been made as a part of the transaction itself. (C. B. & Q. R. Co. vs. Lee, 60 Ill., 501; Betts vs. Farmers, &c. Co., 21 Wis., 87; Milwaukee, & c. R. Co. vs. Finney, 10 Wis., 388; Giles vs. Western R. Co., 8 Metc., 44; Chicago, &c. R. Co. vs. Riddle, 60 Ill., 534; Bellefontain R. Co. vs. Hunter, 33 Ind., 335; Anderson vs. R. Co., 54 N. Y., 334; Mobile, &c., R. Co. vs. Ashcraft, 48 Ala., 15; Luby vs. R. Co., 3 Smith [N. Y.], 731; Northwestern Packet Co. vs. Clough, Sup. Ct. U. S., Oct. term, 1874; 2 Cent. L. J., 83.)

Conover & Hicklin, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

The petition in this case states, that the plaintiff was the owner of fifty-six fat hogs, and that he delivered them to the defendant to be transported from Jackson Station, in Daviess county, to St. Louis; and in consideration of $70, defendant undertook to transport the said hogs with due speed, and in the usual time, and to use due care and diligence in delivering said hogs in good order and condition, and alleges that said hogs were not delivered at St. Louis in due time or in good condition, but that, by negligence, the cars were detained some twenty or thirty hours over the usual time required, and that, owing to said delay, some of said hogs died, and the others were materially damaged.

The defendant set up various defenses in the answer, but as none of them were attempted to be proved it is useless to recite them.

The plaintiff proved, that the hogs were placed on a car, as stated in the petition, without any special contract between plaintiff and defendant, except as to the price of the car load. Some statements were made by the station agent as to the time usually consumed by freight trains between Jackson and St. Louis. There was evidence to show, that, by reason of negligence and unnecessary delay, several hogs were lost, and the others very much deteriorated when they reached the market in St. Louis. Some evidence was also given in regard to a conversation between the agent of plaintiff and one Wicker, said to be the defendant's general freight agent at St. Louis. Objections were made to the evidence, but overruled. The plaintiff's agent called in company with his commission merchant, after he had sold his hogs, at the general freight office, and was introduced to Mr. Wicker, the superintendent, and thereupon Wicker said it was reported to him that there had been delay in the freight train in which plaintiff's hogs had been transported; that it was behind time, and he requested Mr. Buchanan, the commission merchant, to investigate the facts, which, if as represented to him, he thought the damages ought to be paid and would be paid by the company. An exception was taken to the admission of this evidence.

After the evidence of plaintiff was closed, the court required the plaintiff's counsel to elect as to whether they would stand on defendant's common law liability as a common carrier, or upon an alleged special contract; upon which plaintiff's counsel said they had no special contract, and elected to stand on the common law liability of the defendant. Thereupon the defendant asked an instruction in the way of a demurrer to the evidence, that plaintiff could not recover. This instruction was refused, and then defendant's counsel requested the court to enter a judgment on the demurrer.

But the court refused to do this, and submitted the case to the jury on these instructions:

1. “If the jury believe that the plaintiff delivered said hogs to defendant, to be by defendant shipped to St. Louis, under an agreement...