Witting v. St. Louis & S. F. Ry. Co.

• Decision Date: 17 November 1890
• Court: Missouri Supreme Court
• Parties: WITTING v. ST. LOUIS & S. F. RY. CO.

14 S.W. 743

101 Mo. 631

WITTING v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri.

November 17, 1890.

CARRIERS — INJURY TO FREIGHT — SERVICE OF WRIT — PLEADING.

1. In a suit against a common carrier for breaking a marble soda-water fountain shipped "at owner's risk of breakage," the plaintiff has the burden of proving that the loss occurred through the carrier's negligence, and it is error to charge that, if the fountain was received in good order, and, by the exercise of ordinary care, could have been carried and delivered in like good order, then the law presumes that the breakage was caused by the carrier's negligence.

2. Where plaintiff's evidence was that the fountain was properly packed and delivered to the carrier in good order, and that, when it reached its destination, one side of the crate was broken, and one of the inside stays broken, and the others out of place, there is no error in refusing an instruction in the nature of a demurrer to the evidence.

3. Where defendant sues out an appeal from the judgment of a justice of the peace, he waives all defects in the original summons, and in the service thereof.

4. In a suit before a justice of the peace, a statement of the cause of action as follows is sufficient: "St. L. & S. F. R. Co. to T. J. W., Dr. To damages in negligently breaking soda apparatus shipped May 2, 1884, from Oswego, Kansas, to St. Louis, Mo., $200."

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

E. D. Kenna and Adiel Sherwood, for appellant. Davis & Davis, for respondent.

BLACK, J.

This suit was commenced before a justice of the peace by filing the following account: "St. Louis & San Francisco Railway Company to Theo J. Witting, (formerly Reichenbach,) Dr. To damages in negligently breaking soda apparatus, shipped May 2, 1884, from Oswego, Kansas, to St. Louis, Mo., $200." The justice gave judgment by default, and thereafter the defendant appealed to the circuit court, where, upon a trial anew, the plaintiff again recovered judgment, and the defendant appealed to the St. Louis court of appeals. That court reversed the judgment, and remanded the cause for error in the instructions. The cause was then certified to this court, because one of the judges deemed the decision in conflict with prior decisions of this court.

1. In the circuit court the defendant moved to dismiss the cause, because the justice had no jurisdiction over the person of the defendant, and hence the circuit court had no jurisdiction. The only specific reason assigned in the motion is that a copy of the complaint filed before the justice was not served on the defendant. It does not appear by the constable's return that he served the defendant with a copy of the complaint, as seems to be provided for by section 2865 of Revised Statutes, 1879, as amended by the act of March, 1883. Acts 1883, p. 104. The defendant, however, by suing out an appeal waived all errors and defects in the original summons and in the service thereof, and for this reason the motion to dismiss was properly overruled. Fitterling v. Railway Co., 79 Mo. 504.

2. The defendant objected to the introduction of any evidence, because the statement filed with the justice disclosed no cause of action. The statement not only advised the defendant of the nature of the plaintiff's claim, but a judgment upon it would bar another action for the same demand, and the statement is therefore all that the law requires. Butts v. Phelps, 79 Mo. 302.

3. On the trial in the circuit court, the plaintiff produced evidence showing that he acquired the soda fountain, which was made of Italian marble, from one Kingsbury at Oswego, in the state of Kansas; that the apparatus was packed in a crate, and when so packed was received by the defendant's agent at the last-named place, for shipment to St. Louis. When plaintiff received it from defendant, one side of the crate was broken. The fountain had been placed in the center of the crate with inside braces on each side and on the top, to keep it in place. Of these inside braces, one was broken, and the others out of place. The pieces of marble forming the fountain were all broken, except one side piece. With this evidence the plaintiff closed his case. The evidence produced by defendant tends to show that the apparatus, when received at Oswego, was packed on the inside of a crate; that the outside packing appeared to be secure, but the inside packing could not be seen; that the crate was placed in a car with care, with no other freight near it The trainmen say the car received no rough or unusual handling; that there was no unusual jarring or jolting; and that the car came through without accident. The car was not opened while in transit. The loading clerk at St. Louis says: "Found the crate standing upright near the car door, in good shape. The boards were not broken. Could see inside the crate through the slats. Marble was cracked on two sides. Myself and men put it down carefully on the warehouse floor. The crate had the appearance of being second-hand, and did not fit the fountain. It was too large. The crate itself was in good order, and not broken. Kingsbury, the consignor, says the apparatus was fastened together with screws. The screw holes were drilled in the marble, and the holes filled with lead or other metal, and threads for the screws cut in the metal. The screws went through the outside slabs into the ends of the inside slabs. The fountain was old, and the screw holes worn. I frequently plugged the holes with wood so that the screws would not slip out. Do not remember whether or not I plugged the screw holes just before I shipped the apparatus." Defendant put in evidence the bill of lading, which recites the receipt of the property "in apparent good order" and contains, among others, this condition: "Marbles at owner's risk of breakage." At the request of the plaintiff, the court instructed the jury that, if they believed the apparatus, when delivered to defendant, "was in good order, that is to say, not broken, and it was properly packed for such shipment, and that the same was delivered in St. Louis in an injured and broken condition, then the law presumes that such damage and injury was occasioned through the fault of the defendant, provided, also, the jury believe and find that, by the exercise of ordinary care on the part of defendant's employes handling its trains and handling the said soda apparatus, the same could be carried and delivered to the consignee in the same condition it was in when defendant received it." And the court of its own motion gave this instruction: "The court instructs the jury that the plaintiff is not entitled to recover, unless he has shown by a preponderance of the evidence, direct and circumstantial, that the injury complained of was occasioned by the negligence of the defendant, its servants, agents, or employes; and the court further instructs you that the burden of proving negligence rests upon the plaintiff." It must be taken now as the settled law that a common carrier may, by a special contract, limit his common-law liability as insurer of property intrusted to him for transportation against loss or damage. It is equally well settled that he cannot limit his liability so as to free himself from loss or damage occasioned by his negligence, or that of his servants. When this case went to the jury, it stood as a conceded and undisputed fact that the goods were shipped under the special contract which exempted defendant from liability for breakage; so...