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

• Citation: 28 Mo.App. 103
• Parties: THEODORE J. WITTING, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
• Decision Date: 22 November 1887
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 103

THEODORE J. WITTING, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

November 22, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Transferred to the Supreme Court.

JOHN O'DAY, E. D. KENNA, and ADIEL SHERWOOD, for the appellants: The motion to dismiss should have been sustained as no copy of the complaint was served on the defendant, and the summons was fatally defective in failing to state " the nature of the suit." Laws Mo. 1883, p. 104; Hill v. Railroad, 90 Mo. 105-6; Gates v. Eastland, 89 Mo. 13; Haley v. Railroad, 80 Mo. 112; Rev Stat., 1879, sect. 2858. The carrier is prima facie exempt when he produces the contract and shows that the shipment was taken at " owner's risk," and that the goods were " marble at owner's risk of breakage," etc. The proof that the carrier was guilty of negligence which was the proximate cause of the injury complained of must then come from the plaintiff, in the absence of which judgment should go for the defendant. Kiff v. Railroad, 32 Kan. 263; Railroad v Harper, 44 Ark. 208; Heil v. Railroad, 16 Mo.App. 370; American Exp. Co. v. Perkins, 42 Ill. 459; Bradstreet v. Heran, 2 Blatch. 117; Abb. on Ship. [Story's Ed.] 216; The California, 2 Sawy. 12; Hutch. Car., sects. 767, 768; Whitworth v. Railroad, 87 N.Y. 413; Railroad v. Talbot, 39 Ark. 523; Railroad v. Corcoran, 40 Ark. 375; Railroad v. Hally, 25 Kan. 35; Muser v. Holland, 17 Blatch. C. C. 412; Carey v. Atkins, 6 Ben. 562; Lamb v. Railroad, 46 N.Y. 278, 281-2; Farnham v. Railroad, 55 Pa.St. 53; Steamboat v. Carney, 5 Kan. 645; Morrison v. Construction Co., 19 Am. Ry. Reps. 312; Grace v. Adams, 100 Mass. 505; Ward v. Andrews, 3 Mo.App. 277; Nolan v. Shickle, 3 Mo.App. 304-5; Shultz v. Railroad, 36 Mo. 32; Czeh v. Nav. Co., L. R. 3 C. P. 18; Dorr v. Nav. Co., 11 N.Y. 492-3; Stump v. Hutchinson, 11 Pa.St. 533; The Periere, 8 Ben. 301; Lamb v. Railroad, 7 Allen 98; Patterson v. Clyde, 67 Pa.St. 500; Railroad v. Reeves, 10 Wall. 189, 190; York v. Railroad, 3 Wall. 107; Muddle v. Stride, 9 Car. & Payne, 380; Harvey v. Railroad, 6 Mo.App. 585. Instruction number two, given at the plaintiff's request, is in direct conflict with instruction number one given by the court of its own motion. These instructions present different doctrines, were calculated to mislead and confuse the jury, and it was error to give them. Whitworth v. Railroad, 87 N.Y. 418-19; Lamb v. Railroad, 46 N.Y. 281-82; Davis v. Railroad, 89 Mo. 340, 354; Thomas v. Babb, 45 Mo. 384; Price v. Railroad, 77 Mo. 512; Wood v. Steamboat, 19 Mo. 529; Stevenson v. Hancock, 72 Mo. 614; Thompson " Charging the Jury," sects. 68, 69; The State ex rel. v. Nauert, 2 Mo.App. 297-8; Donahoe v. Railroad, 83 Mo. 560; Greer v. Parker, 85 Mo. 107; Frederick v. Allgaier, 88 Mo. 603; Gillett v. Corum, 5 Kan. 514; Welsh v. Railroad, 20 Mo.App. 477; Singer v. Hudson, 4 Mo.App. 145; Goetz v. Railroad, 50 Mo. 474; Swan v. Lullman, 12 Mo.App. 584; Railroad v. Armstrong, 49 Pa.St. 193. The court erred in refusing instruction number three asked for by the defendant. It was the right of the defendant to have the jury instructed that the bill of lading constituted the only contract of shipment. Snider v. Exp. Co., 63 Mo. 376; O'Bryan v. Kinney, 74 Mo. 125; Grace v. Adams, 100 Mass. 505; Cahn v. Reid, 18 Mo.App. 115. The court erred in refusing instruction number four asked by the defendant, and in giving instruction number one of its own motion. It was also error to give instruction number one given for the plaintiff; it does not correctly declare the law and has no evidence to support it, and is calculated to mislead and confuse the jury. Ward v. Andrews, 3 Mo.App. 277; Nolan v. Shickle, 3 Mo.App. 304-5; Shultz v. Railroad, 36 Mo. 32; Conway v. Railroad, 24 Mo.App. 235; Muirhead v. Railroad, 19 Mo.App. 634; Chouteau v. Searcy, 8 Mo. 734; Lamb v. Railroad, 7 Allen 98; Morrison v. Const. Co., 19 Am. Ry. Rep. 312; Lamb v. Railroad, 46 N.Y. 278; Farnham v. Railroad, 55 Pa.St. 53. The court erred in refusing instruction number one asked by the defendant. The defendant is entitled to a verdict when there is doubt whether it has been guilty of negligence, and the court should have so instructed the jury. Hutch. Car., sect. 768; Whitworth v. Railroad, 87 N.Y. 420; Smith v. Bank, 99 Mass. 612; Lamb v. Railroad, 46 N.Y. 281; Cochran v. Dinsmore, 49 N.Y. 252-3; Muddle v. Stride, 9 Car. & P. 380; Cahn v. Reid, 18 Mo.App. 115.

DAVIS & DAVIS, for the respondent: The motion to dismiss should not have been sustained. Rev. Stat., 1879, sect. 3041, art. 9, chap. 44, as amended by act of 1885, p. 187, sect. 2. The appellant, by appearing and defending the action, waived any right it may have had to urge to this court that there was not proper service upon it. Gant v. Railroad, 79 Mo. 502; Fitterling v. Railroad, 79 Mo. 504; Boulware v. Railroad, 79 Mo. 494. The statement filed before the justice is sufficient if it advises the defendant of what it is sued for, and is sufficiently certain to bar another action upon the same cause of action. The City of Kansas v. Johnson, 78 Mo. 661. And the statement is good under the rule in Butts v. Phelps (79 Mo. 302); Gibbs v. Railroad (11 Mo.App. 459); Johnson v. Moffett (19 Mo.App. 159), and cases there cited. The demurrer to the evidence filed by the defendant at the close of the whole case, was properly refused. Levering v. Transit Co., 42 Mo. 88; Wolf v. Express Co., 43 Mo. 421; Ketchem v. Express Co., 52 Mo. 390; Snider v. Express Co., 63 Mo. 376; Rice v. Railroad, 63 Mo. 315; Davis v. Railroad, 89 Mo. 340; Kirby v. Express Co., 2 Mo.App. 369; Drew v. Transit Co., 3 Mo.App. 495; Lin v. Railroad, 10 Mo.App. 125; Nave v. Express Co., 19 Mo.App. 563; Lupe v. Railroad, 3 Mo.App. 77. Instructions numbered one and two, given at the plaintiff's request, correctly state the law. Nave v. Express Co., 19 Mo.App. 563; Drew v. Transit Co., 3 Mo.App. 495; Davis v. Railroad, 89 Mo. 315, 349; Kirby v. Express Co., 2 Mo.App. 369. It was not error to refuse instruction number four, asked by the defendant. It was not error to give instruction number one, by the court of its own motion. All the defendant was entitled to was given by the court in its first instruction given. And instruction number four refused is not the law. If the defendant's negligence was the proximate cause, or mingled with the excepted cause as an active and coö perative cause of the loss or injury of the thing carried by it, the carrier is still liable. Read v. Railroad, 60 Mo. 199; Clark v. Railroad, 39 Mo. 184; Ballentine v. Railroad, 40 Mo. 491.

OPINION

ROMBAUER J.

This suit was instituted before a justice of the peace on the following statement.

" St. Louis & San Francisco Railroad 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, Missouri $200.00"

It is conceded that there was not sufficient service of summons upon the defendant company, and that the company did not appear and defend before the justice, but suffered judgment by default. From this judgment the company appealed to the circuit court, and there moved to dismiss the action on the ground that the justice had not acquired jurisdiction of the person of the defendant, and consequently the circuit court had none. This motion was overruled, and the parties went to trial, which resulted in a verdict and judgment for the plaintiff for two hundred dollars.

The first error assigned by the defendant is, that the court erred in overruling his motion to dismiss. The Supreme Court has repeatedly decided that an appeal taken by a defendant dispenses with the necessity of showing a sufficient service of summons before the justice (Gant v. Railroad, 79 Mo. 502; Fitterling v. Railroad, 79 Mo. 504); and we have had occasion, at the present term, to follow that ruling in the case of Eubank v. Pope (27 Mo.App. 463). The cases cited by the appellant to the contrary have no application because they relate to garnishment proceedings, which depend for their validity upon the question whether the justice acquired jurisdiction of the debt to be condemned, it being well settled that consent, or the voluntary appearance of the defendant garnishee, can not confer jurisdiction. Masterson v. Railroad, 20 Mo.App. 653; Gates v. Tusten, 89 Mo. 13, 22. This point, therefore, must be ruled against the appellant.

Nor is there any merit in the appellant's second objection that the statement filed fails to state a cause of action, and that the court erred in receiving evidence to substantiate it. The statement filed is sufficiently specific to advise the defendant of the nature of the plaintiff's claim, and sufficiently certain to bar another action for the same cause. That is the proper test. Statements have been held insufficient which did neither of these, as " Nicholson, debtor to Marion Swartz, fourteen dollars" (Swartz v. Nicholson 65 Mo. 508); or the " plaintiff states that the defendant is indebted to him in the sum of fifty dollars, lawful currency, for which he asks judgment." Butts v. Phelps, 79 Mo. 303. But our attention has not been called to any case wherein a statement filed before a justice of the peace did comply with the two requirements above stated, and was held insufficient, unless it omitted to state jurisdictional facts.

This brings us to the substantial complaint of the appellant, that the rulings of the court upon the evidence, and its instructions to the jury, were erroneous.

The plaintiff testified, in substance, that the soda fountain in controversy was made entirely of marble; that he acquired it in trade from one Kingsbury, in Oswego, and had...