Ward v. American Ry. Express Co.

• Decision Date: 04 March 1924
• Docket Number: No. 18278.,18278.
• Parties: WARD v. AMERICAN RY. EXPRESS CO.
• Court: Missouri Court of Appeals

259 S.W. 514

WARD v. AMERICAN RY. EXPRESS CO.

No. 18278.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Rehearing Denied March 18, 1924.

Appeal from Circuit Court, Ralls County; Charles T. Hays, Judge.

"Not to be officially published."

Action by W. H. Ward against the American Railway Express Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. M. Hartung, of New York City, and Geo. A. Mahan, Dulany Mahan, and Ezra T. Fuller, all of Hannibal, for appellant.

Eby & Hulse, of Hannibal, and E. L. Alford, of Perry, for respondent.

ALLEN, P. J.

This is an action against the defendant express company, under its common-law liability, as a common carrier, to recover the value of a jack alleged to have been delivered to it by plaintiff at Perry, Mo., for transportation to Cassville, Wis. Plaintiff alleges that defendant, in violation and disregard of its duty as a common carrier, failed to transport the animal to destination, and has ever since failed to deliver the same to plaintiff, praying damages in the sum of $1,050. Defendant, by its answer, denies generally the allegations of the petition, and pleads that if plaintiff suffered any damage, as alleged in the petition, it was caused by, and was the direct result of, "the inherent vice and the dangerous, evil and vicious propensities of said jack."

The trial below resulted in a verdict and judgment for plaintiff in the sum of $800, and the defendant has brought the case here by appeal.

The evidence shows that on March 19, 1920, plaintiff delivered the jack to defendant at Perry, Mo., for shipment and delivery to plaintiff, as consignee, at Cassville, Wis. Plaintiff's jack, with another jack belonging to one Ragsdale, left Perry in a box car and was transported over the line of the St. Louis & Hannibal Railway Company to Hannibal, Mo., and thence over the line of a connecting carrier to Aurora, Ill., where it is said, he was found to be suffering from a broken back, which resulted in his death.

Plaintiff's jack, as well as that of Ragsdale, was shipped in a crate made of slats, open at the top. Plaintiff and Ragsdale were in the car nailing some slats on these crates when the train containing the car left Perry, and thus they accompanied the shipment to a point a few miles from Perry, where a car in the train was derailed, and the front trucks of this box car likewise left the track. Both plaintiff and Ragsdale testified that plaintiff's jack did no kicking at all prior to this derailment. The testimony of plaintiff is that when the derailment occurred the crate containing Ragsdale's jack fell over against plaintiff's jack. And Ragsdale testified that the crate containing his jack struck plaintiff's jack and "mashed him right down"; though the crates and both jacks were standing upright after the derailment. This testimony, and that of Ragsdale as to the apparent condition of plaintiff's jack when later seen by him at Hannibal, tends to show that the animal was injured as a result of the derailment. Both witnesses testified that plaintiff's jack was in a thoroughly sound that healthy condition when delivered to defendant, and was of a very quiet and gentle disposition. Such is likewise the testimony of Dr. Martin, a veterinary surgeon of Perry, who examined the jack shortly prior to the delivery thereof to defendant, as well as that of another witness.

In support of its defense that the jack was injured and died as a result of his own inherent evil and vicious propensities, the defendant adduced testimony tending to show that when the jack had been loaded into the car he at once began kicking, and before the derailment occurred had kicked some of the slats from the crate; and that he continued to kick a great deal, from time to time, during much of the period consumed in making the shipment to Aurora. And defendant adduced expert testimony tending to show that if the jack's back had been broken in the derailment he could not have stood upright or kicked thereafter; though there is expert testimony in plaintiff's behalf that if the break was a partial fracture the animal "might be able to stand until the pressure on the cord pulled him down," that under such circumstances the jack could kick and might stay on his feet for several hours.

We need not set out the evidence in great detail, since there is no contention that the case was not one for the jury. Further reference, however, will be made to some of the testimony in connection with the questions to be discussed in the opinion.

I. The first assignment of error is that the court erred in giving plaintiff's instruction No. 1, which, because of the attacks made upon it, we set out in full as follows:

"The court instructs the jury that if you believe and find from the evidence that on or about the 19th day of March, 1920, the plaintiff delivered to defendant, and the defendant accepted, at its office and station in the city of Perry, Halls county, Mo., the jack mentioned in evidence to be transported by defendant from said city of Perry to the town of Cassville, Wis., there to be delivered to plaintiff, then it was the duty of defendant to safely transport said jack within a reasonable time from its said station at Perry, Mo., to said town of Cassville and there deliver said jack to plaintiff.

"And if the jury further find from the evidence that the defendant failed to transport said jack from Perry, Mo., to Cassville, Wis., and there deliver said jack to plaintiff at any time after said 19th day of March, 1920, and that such failure, if any, on the part of defendant to deliver said jack was not produced, caused, or brought about by reason of or as the result of the inherent vice or the dangerous or vicious propensities, if any, of said jack, then the jury should find for the plaintiff and assess his damages at such sum, not exceeding the sum of $1,050, as the jury may find from the evidence would have been the fair and reasonable market value of said jack at the time of its delivery to plaintiff by defendant at Cassville, Wis., within a reasonable time after the shipment of said jack from Perry, Mo., if said jack lad been so delivered at Cassville, Wis."

The first complaint as to this instruction is that it fails to require the jury to find that the jack was in good condition when delivered to defendant at Perry, but assumes such to be the fact. It is true the instruction does not require such finding, but we regard it as entirely clear that this does not constitute reversible error, under the circumstances of this case. As indicated above, there was much positive testimony adduced by plaintiff tending to show that the jack was in good, healthy condition when delivered to defendant; and defendant made no effort to adduce anything whatsoever to refute this, but pitched its battle along entirely different lines. And touching this phase of the case, the cross-examination of plaintiff's witnesses was such as to indicate that defendant did not regard the matter as one in controversy. As illustrating this, it may be noted that in the cross-examination of plaintiff,, defendant brought out the fact that immediately prior to the shipment Dr. Martin, the veterinary surgeon at Perry, issued a health certificate, which defendant produced, showing the jack to be in good condition. Under such circumstances, where it is made manifest to the trial court that a particular matter is not regarded as being in controversy, but is treated as being a conceded fact in the case, it is not reversible error for the court to assume the existence thereof in instructing the jury. See Taylor v. Iron Co., 133 Mo. 349, 34 S. W. 581; Sotebier v. Transit Co., 203 Mo. 702, 102 S....