Vanbuskirk v. Quincy, Omaha & Kansas City Railroad Company

• Decision Date: 08 June 1908
• Parties: CARL VANBUSKIRK, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

111 S.W. 832

131 Mo.App. 357

CARL VANBUSKIRK, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Grundy Circuit Court.--Hon. George W. Wanamaker, Judge.

REVERSED AND REMANDED.

J. G Trimble and Hall & Hall for appellant.

(1) The trial court erred in permitting plaintiff to prove the horses claimed to be injured had special value as race horses, and that he had sustained special damages, by reason of their having been injured so they could not race. To entitle plaintiff to recover special damages they must be specially pleaded. Mason v. Railroad, 75 Mo.App. 1; Brown v. Railroad, 99 Mo. 310; Harper v. Railroad, 70 Mo.App. 607. (2) The court erred in excluding the evidence offered by defendant tending to prove that plaintiff was not the owner of the horses that he claimed and was seeking to recover damages for injuries to. R. S. 1899, sec. 540. This testimony was also competent as an admission or declaration against interest. Schlicker v. Gordon, 19 Mo.App 485; State ex rel. v. Henderson, 86 Mo. 482. (3) As defendant offered some evidence tending to prove that plaintiff was not the owner of the horses claimed to have been injured, the trial court erred in refusing to give instruction numbered 9. Kelley v. Railroad, 70 Mo 604; Yates v. Brackenridge, 27 Mo. 531. (4) The court erred in permitting plaintiff's instruction numbered 1 to be read to the jury and taken with them to their room as one of the instructions of the court without having been passed upon and approved by the court. (5) Even if the instruction had been marked "given" by the court, it is erroneous in this that in the second count of the petition they only claim $ 150 for doctoring and caring for the mare, while in the instruction they claim $ 300 for doctoring and treating the mare. The issues raised in the pleadings cannot be enlarged or changed by the instructions. Nugent v. Milling Co., 131 Mo. 257; White v Chaney, 20 Mo.App. 397; Dunn v. Railroad, 21 Mo.App. 197; Zwisler v. Storts, 30 Mo.App. 168; Wilburn v. Railroad, 36 Mo.App. 214; Jacquin v. Cable Co., 57 Mo.App. 331; Pryor v. Railroad, 85 Mo.App. 378; Mitchell v. Railroad, 108 Mo.App. 151, and cases cited; Lester v. Railroad, 60 Mo. 268; Buffington v. Railroad, 64 Mo. 246; Waldhier v. Railroad, 71 Mo. 516; Schneider v. Railroad, 75 Mo. 295; Ely v. Railroad, 77 Mo. 34 and cases cited; Benson v. Railroad, 78 Mo. 513; Hartz v. Railroad, 95 Mo. 368; Haynes v. Trenton, 108 Mo. 123; Hite v. Railroad, 130 Mo. 136; McNamanee v. Railroad, 135 Mo. 447; Bartley v. Railroad, 148 Mo. 139; Holwerson v. Railroad, 157 Mo. 244; Wolfe v. Supreme Lodge, 160 Mo. 686; Colliott v. Mfg. Co., 71 Mo.App. 170; Gibson v. Freygang, 87 S.W. 3; Landers v. Railroad, 114 Mo.App. 655.

A. G. Knight and E. M. Harber for respondent.

(1) So far as we know, the rule that it is competent to prove the quality, disposition, character, traits and breed of an animal to show its value has never been questioned, until here, this rule is universally, we think, recognized. 3 Elliott on Railroads (2 Ed.), sec. 1218, and cases cited. (2) Respondent being the consignor could have sued for and recovered damages for each and all of the animals so covered by said shipment though he had no interest whatever in all or any of them, this is the well settled rule in this State, indeed it is the statute. R. S. 1899, sec. 541; Atchison v. Railroad, 80 Mo. 213; Ross v. Railroad, 119 Mo.App. 290; Gratiot v. Railroad, 124 Mo.App. 562. Hence any evidence as to whether he was owner of Grace Lane and Nancy Rex was entirely immaterial. (3) The complaint that the instruction was not marked "given" is a hypertechnical objection. (4) If the verdict had been for more than $ 450 the amount in fact in the petition claimed $ 150 for caring for the mare and $ 300 the damage to her in all $ 450 then there might be some merit in respondent's contention and we would either be allowed to remit excess over amount claimed or be, we assume, permitted to amend petition, but the finding was for only $ 295.83 upon this count.

OPINION

JOHNSON, J.

Action against a common carrier brought by the shipper of certain race horses to recover damages resulting from injuries to the property which are alleged to have been negligently inflicted by defendant in the course of transportation. Judgment was for plaintiff and defendant appealed.

On September 2, 1905, plaintiff shipped in his own name as consignor five race horses from Harris to Trenton. Two of the animals, "Grace Lane" and "Nancy Rex" belonged to plaintiff, one, "Mermaid" to Lose Brothers of Harris, and the remaining two were the property of another owner. The shipment was received by the Chicago, Milwaukee & St. Paul Railway Company and by that company delivered at a transfer point to defendant company which undertook to complete the transportation. The evidence of plaintiff strongly tends to show that in entraining the car containing the horses and their attendants, defendant so negligently handled the car that it collided with the train with extraordinary violence and, as a result, horses and men were precipitated into an indiscriminate pile. This action is concerned with the injuries sustained by plaintiff's two horses and the one owned by Lose Brothers, who assigned their claim for damages to plaintiff before action was begun.

The petition is in two counts. The cause pleaded in the first is the negligent injury of plaintiff's horses; that in the second, the injury of the horse owned by Lose Brothers. It is alleged in the first, "that defendant's agents and servants engaged in the operation of said train, handled and managed same in such reckless, negligent and careless manner as to cause the said car in which the said horses and said property were, to be greatly jostled, unnecessarily knocked, jarred and jolted by the striking to, with and against other cars, as to greatly and permanently injure plaintiff's said horses and to deprive plaintiff of the use thereof, which was of great value to him, from said time to this, and to cause plaintiff to necessarily contract and expend large sums, at least $ 150, in caring for, doctoring said horses and for medicines and other attention thereto, and to plaintiff's damage, in all in the sum of at least $ 1,050." The second count contains the allegation "that defendant discharged its duty in such reckless, negligent and careless manner as to cause the horse 'Mermaid' of said Lose Brothers to be greatly and permanently injured in body and legs, internally and externally. That it jammed said car up, to and against other cars and other cars against said car with such force and violence as to jar, jolt, and permanently injure said mare as aforesaid, and that by reason thereof said Lose Brothers were deprived of the use of said mare from said time to this, to their damage in the sum of, at least, $ 300, and they were compelled to contract and expend large sums, at least $ 150 in doctoring and caring for said mare and that by reason of the injuries of said mare, as aforesaid, they have been damaged to the sum of $ 300, in all, to the sum of $ 750." The verdict was for plaintiff on both counts; on the first, in the sum of $ 562.50 and on the second, $ 295.83.

First defendant contends that "the trial court erred in permitting plaintiff to prove the horses claimed to be injured had special value as race horses and that he had sustained special damages by reason of their having been injured so they could not race. To entitle plaintiff to recover special damages, they must be specially pleaded." [Citing Mason v. Railroad, 75 Mo.App. 1; Brown v. Railroad, 99 Mo. 310; Harper v. Railroad, 70 Mo.App. 604; O'Leary v. Rowan, 31 Mo. 117; State to use v. Blackman, 51 Mo. 319.] In Brown v. Railroad, the Supreme Court aptly stated the rule applied on numerous occasions in this State by the courts of last resort: "General damages are such as the law implies or presumes to have occurred from the wrong complained of, and they need not be pleaded. In such cases the wrong itself fixes the right of action. Special damages are such as really took place, and are not implied by law. They are either superadded to general damages from an act injurious in itself, or are such as arise from an act not...