Vaughn v. Wabash R. Co.

• Citation: 188 S.W.2d 352,239 Mo.App. 340
• Parties: L. L. Vaughn v. Wabash Railroad Company
• Decision Date: 21 May 1945
• Court: Court of Appeals of Kansas

188 S.W.2d 352

239 Mo.App. 340

L. L. Vaughn v. Wabash Railroad Company

Court of Appeals of Missouri, Kansas City

May 21, 1945

Appeal from Circuit Court of Adair County; Hon. Noah W. Simpson Judge.

Affirmed.

E M. Jayne for appellant.

(1) The liability of a carrier "at common law" was upon "implied agreement." 13 C. J. S., p. 131, Par. 71. (2) The shipment in question was one in interstate commerce notwithstanding the fact that a new or additional bill of lading was made at Kansas City. Buschow Lumber Co. v. Hines, 229 S.W. 451, l. c. 453, 206 Mo.App. 681. (3) The rights and liabilities of the parties growing out of an interstate shipment depend upon the acts of Congress, the contract between the parties and common law principles accepted and applied by the Federal Courts. Morrow v. Wabash Railroad Company, 265 S.W. 851, l. c. 855. (4) Having proven that the shipment was made under a written contract the respondent is in no position to claim rights beyond that contract. Morrow v. Wabash, 266 S.W. 851, l. c. 855, Pars. 12-13; Vaughn v. Q., O. & K. C. Railroad Company, 123 S.W.2d 569. (5) The admission in evidence of respondent's Exhibit 3 for the purpose of contradicting appellant's witnesses was clearly violative of the rule that evidence contradicting immaterial testimony is not admissible for the purpose of impeaching the credibility of witnesses offering such testimony. Cooley v. Davis, 286 S.W. 412; Carder v. Primm, 60 Mo.App. 423.

M. D. Campbell and S. H. Ellison for respondent.

(1) It is well settled law that a failure to demur, or an abandonment of an instruction in the nature of a demurrer, is an admission that the plaintiff made a case for the jury. Thompson v. Bank, 42 S.W.2d 56; Pulsifer v. City, 47 S.W.2d 233; Lintz v. Company, 49 S.W.2d 675. (2) The general denial of the answer may be disposed of by calling attention to the rule that it is destroyed by the attempt to plead specific matters. Wahlig v. Hill, 117 S.W.2d 706; State v. Delmar Club, 200 Mo. 34; Dietz v. Company, 28 S.W.2d 395, holds that the initial carrier and the succeeding carrier are both liable where the damage occurs on the line of the succeeding carrier. It is a joint and several liability, which they may adjust among themselves, but in which a plaintiff is not interested. But it is sufficient to say we may sue the culpable carrier. Crockett v. Railroad, 147 Mo.App. 347. It is both a receipt and a contract. Morrison v. Railroad, 182 Mo.App. 339. Sec. 5616, R. S. 1939, provides it to be the duty of the receiving carrier (Wabash) to issue a receipt, or Bill of Lading, and it did. The suppression of this evidence itself raised a presumption of its negligence. Derringer v. Railroad, 40 S.W.2d 1069. The defendant's objection in the trial to the introduction of the Exhibit was that it was merely cumulative and not proper rebuttal. This objection cannot on appeal be broadened. State v. Weis, 185 S.W.2d 53; Koorse v. Co., 18 S.W.2d 467; Cents v. Co., 99 S.W.2d 1. The admission of cumulative evidence is discretionary. Howard v. Co., 7 S.W.2d 448. That the objections of defendant were without merit is confessed by abandoning them in printed brief. Campbell v. Campbell, 20 S.W.2d 655; Place v. Parker, 180 S.W.2d 538. Defendant now argues that the evidence was "impeachment" on an immaterial matter, which is an objection this court will not consider. Flint v. Sebastran, 30 S.W. 798; Kincaid v. Birt, 29 S.W.2d 97. The contradiction of a witness is not necessarily impeachment. Banc v. Richmand, 235 Mo. 542; Talley v. Rickart, 185 S.W.2d 24.

OPINION

Cave, J.

This is an action to recover damages for loss sustained by plaintiff to six car loads of cattle in transit from Kansas City, Missouri, to Greentop, Missouri. Verdict and judgment were for plaintiff for $ 1800. Defendant appealed.

The petition is founded upon the theory of the carrier's common-law liability as an insurer; neither specific negligence nor written contract is pleaded. The cause of action alleged is the failure of defendant to discharge its common-law obligation safely to deliver the property at its destination. [Creamery Co. v. Ry. Co., 128 Mo.App. 420.]

The answer is a general denial, coupled with an allegation that the shipment was made from the state of Texas and not from Kansas City, as alleged, and that certain other railroads handled the shipment under a contract to which the plaintiff was not a party; and that whatever damage suffered by the cattle was not the result of any negligence of defendant. The reply is a general denial, together with an allegation that the defendant knew the condition of the cattle at the time it received them at Kansas City, Missouri.

Defendant makes five assignments of error, but there are only two carried forward in points and authorities and argument, and all others will be considered abandoned. [Magers v. Northwestern Mut. Life Ins. Co. (Mo.), 152 S.W.2d 148, 149.]

Appellant states its first contention in this manner: "The question in this case is not whether respondent was entitled to recover of appellant (defendant) for damages to his livestock. The question is whether respondent, when he was not a party to the shipping contract, was entitled to the benefit of the rule of law that cast the burden of proof upon a carrier to absolve itself from any possible negligence. That rule of law exists and is enforced in actions against common carriers because the relationship of carrier and shipper or carrier and consignee exists."

The Missouri rule of a carrier's common-law liability, such as is pleaded in the petition, is clearly defined by this court in Hartford Fire Ins. Co. v. Payne, 243 S.W. 357, 359, and is stated thus:

"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 prima facie 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. . . . And this is true even in interstate cases. . . . And it is conceded that the shipper makes a prima facie case, even in the case of live animals, when he shows a delivery to the carrier in good condition and receipt at destination in bad condition." [See, also Boyd v. St. Louis Express Co., 211 S.W. 702; Sullivan v. American Ry. Express Co., 211 Mo.App. 123, and Vaughn v. St. Louis-San Francisco Ry. Co. et al., 15 S.W.2d 901.]

Therefore, the question for consideration is whether the plaintiff was such a shipper or consignee that he is entitled to the above rule of law. There appears to be no need of detailing the damage done to the cattle because the amount of the verdict is not criticised, nor claim made in the brief that the damages were due to the vices or infirmities of the animals.

With reference to the facts surrounding the shipment, the record discloses that the plaintiff, L. L. Vaughn, (sometimes referred to as Vaughn Company, or Vaughn and Company) resided at Greencastle, Missouri, and was extensively engaged in the cattle business; that Harry Conley (sometimes referred to as H. Conley and as Harry Conley and Company) resided in Kansas City, Missouri, and was extensively engaged in the cattle business; that Harry Conley (sometimes referred to as H. Conley and as Harry Conley and Company) resided in Kansas City, Missouri, and was extensively engaged in buying and selling stocker cattle. In April, 1943, Harry Conley bought 500 head of cattle from one J. H. Tigner of Hitchcock, Texas. By a Uniform Livestock Contract with the Gulf, Colorado and Santa Fe Railroad Company, Tigner shipped the cattle consigned to Harry Conley, with Bowling Green, Missouri, as the destination, with stopover privileges at the West Side Yards in Kansas City, Missouri, for feed and rest. The cattle arrived at Kansas City on Monday morning, May 3, 1943. Conley, the owner, sold 42 head of them the next day to one Harry Peters and shipped them to him at Sheldon, Missouri. The remainder were sold to plaintiff on May 6 and paid for by him on that day. Some of these cattle were shipped to other points in Missouri and are not involved in this suit. After plaintiff purchased and paid for the cattle he arranged with Conley to ship 232 of them to him at Greentop, Missouri, with freight prepaid. Plaintiff left Kansas City and Conley arranged with defendant to transport the cattle to Greentop. Defendant issued its Uniform Livestock Contract wherein it agreed to transport said cattle and deliver the same to "Harry Conley, care of Vaughn Co., Greentop, Mo." Plaintiff knew nothing of this contract until he received the cattle and defendant's local agent delivered it to him. Defendant introduced the written contract as a part of its case.

It can be said that plaintiff's evidence proves that he became the owner of the cattle, by purchase, while they were located in the stockyards in Kansas City, Missouri, and that he arranged with Conley, the seller, to have the cattle shipped to him, freight prepaid; that Conley delivered them to defendant for such purpose; and that they were delivered to ...