Vernon v. America Ry. Express Co.

• Decision Date: 05 June 1920
• Docket Number: No. 2721.,2721.
• Parties: VERNON et al. v. AMERICA RY. EXPRESS CO.
• Court: Missouri Court of Appeals

222 S.W. 913

VERNON et al. v. AMERICA RY. EXPRESS CO.

No. 2721.

Springfield Court of Appeals. Missouri.

June 5, 1920.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by James Vernon and W. It. Mayfield against the American Railway Express Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

A. M. Hartung, of New York City, and. A. W. Curry, of Lebanon, for appellant.

W. Mayfield & Son, of Lebanon, for respondents.

STURGIS, P. J.

Plaintiff's cause of action is based on defendant's failure as a common carrier to well and safely carry eight barrels of dressed poultry from Lebanon, Mo., to St. Louis, Mo., and there deliver the same to the consignee, Levy Bros. Commission Company. This poultry was delivered to defendant for shipment on the evening of December 7, 1918, and it is alleged should have been delivered to the consignee on the morning of December 8th, but was not delivered till the middle of the afternoon of that day, when it was found to have been spoiled and so damaged that the consignee refused to accept same. The_ defendant thereupon sold such poultry for the best price it could obtain and tendered the proceeds to plaintiff. .This amount plaintiff refused to accept in full settlement. On trial without a jury in the circuit court, plaintiff obtained judgment for the full value of the shipment, and defendant appeals.

The evidence shows that Lebanon is some 180 miles from St. Louis, and that defendant used the trains of the St. Louis & San Francisco Railroad in making its shipments. The first train carrying express after plaintiff delivered this poultry to defendant at Lebanon left there near midnight and arrived at St. Louis at 6:55 the next morning. The other trains carrying express left Lebanon later that night and arrived at St. Louis about 8:30 and 9 o'clock, respectively, the next morning. The consignee testified that the weather was very warm for that time of year and, expecting this poultry and knowing that it might spoil, he called the defendant's St. Louis office in regard thereto about 7:15 in the morning and was informed that the shipment was then there. This shows that it arrived on the first train. The consignee offered to himself send for the shipment, but was informed that it would be sent out at once. The general foreman of the defendant's commission department said that the train carrying this shipment was due about 8 a. m., so that there is abundant evidence that the poultry arrived in St. Louis early in the morning of December 8th. The evidence of the clerk of defendant's superintendent that the express cars were not delivered till a later hour on December 9th is of no importance, as that was a different date. All the evidence shows that this poultry shipment was not delivered to the consignee till 3 p. m. of December 8th, and there is no question as to its being delivered in a damaged condition. The uncontradicted evidence also is that, while the weather was unusually warm for that time of year, the poultry had been carefully packed in ice in good condition, and would easily stand the ordinary trip from Lebanon to St. Louis and delivery there. It was also shown, and this seems obvious, that after the ice has melted dressed poultry will spoil by standing five or six hours uncared for. That plaintiff made a case on the facts seems too plain for argument.

The petition is in two counts; one alleging a conversion of plaintiff's poultry by defendant in failing to deliver it to consignee, and the other for damages based on the negligent delay in shipping and delivering. The petition was demurred to on the ground of inconsistency in the two counts, and on the ground that one was based on tort and the other on contract. By answering and going to trial after the demurrer was overruled the defendant waived this point. Section 1804, R. S. 1909. Besides this, plaintiff was required to elect, and did elect, to stand on the second count of the petition. That count and the cause of action there stated is all that is before this court.

A common carrier is an insurer of freight, except as against an act of God, the public enemy, and the inherent nature of the freight. Singer v. Amer. Express Co., 219 S. W. 662. It is claimed that the damage to this shipment of poultry was due to the first exception mentioned, in that the weather was unusually warm for December. Extraordinary hot weather at a particular time would come within such exception, but to excuse the carrier on such ground the extraordinary weather condition must be the sole cause of the loss. If the carrier's negligence contributes to such loss, then there is liability. Such is the holding in the cases cited by defendant. Vail v. Railroad, 63 Mo. 230; Hance v. Railroad, 48 Mo. App. 179. While the weather was unusually warm, the uncontradicted evidence is that this poultry was carefully packed in ice, so as to easily stand the time required for shipment and delivery at destination. The unusual and unexplained delay of at least six hours in making...