151 Mo. App. 293 | Mo. Ct. App. | 1910
Lead Opinion
This is a suit for damages against the carrier for its failure to deliver cattle shipped to market within a reasonable time.
It was shown that the business of buying and selling cattle usually closed at 3 o’clock p. m. each day. The plaintiff testified that owing to the shortness of time after the arrival of the cattle and the closing of the days’ business at the pens, he did not have the opportunity to avail himself of that days market, as most of the buying and selling was over shortly after two o’clock. Plaintiff kept his cattle over and sold them on the next day’s market; in the meantime there had been a decline in the price of cattle.
The evidence was that Silvius shipped the cattle in his own name and signed the contract of shipment. But plaintiff testified that he did not authorize him to so ship them. The defendant’s evidence tends to contradict that of plaintiff as to some matters, and it exhibited a written contract for the shipment and offered it in evidence but the record fails to show that it was introduced. One of the conditions in said writing is as follows: “That as a condition to claiming or recovering damages for any loss or injury to or detention of live stock, or delay in. transportation thereof, covered by this contract, the second party, as soon as he discovers such loss or injury, shall promptly send
It seems that the jury in fixing plaintiff’s damages-took as a'basis the weight of ninety head as estimated by the parties, whereas two head of the cattle were not included in the sale but were retained by Silvius, but shipped to market with the eighty-eight head. The jury returned a verdict for plaintiff in the sum of $432.90, from the judgment thereon defendant appealed.
The principal contention of defendant is, that, under the pleadings and evidence plaintiff was not entitled to recover. It is insisted that plaintiff’s failure to give notice of his damage forthwith upon the discovery thereof precludes him from recovery. But as the contract providing for such notice was not introduced in evidence, that question is no longer in the case.
It is insisted that as the animals were not weighed before shipment, that there was nothing before the jury upon which to base a finding for damages of any kind. It is well established rule of evidence, that the best evidence to be had, shall be introduced to prove the fact sought to be established. The best evidence to establish the weight of the cattle would have been to have weighed them upon the scales. This was not done, but their weight was estimated by experts. This was not the best evidence, but it was the only evidence of such weight. It would be a poor rule of law that would turn a suitor out of court because he was not able to produce the best possible evidence to prove his cause.
There is no doubt but what it was shown that had defendant shipped plaintiff’s cattle at the usual time they would have arrived in ample time for the next day’s market. And that their arrival was so late that they could not advantageously be put on sale that day, and that they were consequently kept over until the next day. The rule in such cases is stated as follows: “Where
In a case when the cattle ought to have arrived in tune for the morning market hut were delayed an unreasonable time and did not arrive in time for the morning market and the plaintiff kept them over and sold them the next day when the market was not so good a.s the previous morning, he was permitted to recover. This and that case are similar in every important particular. [Douglass v. Ry. Co., 53 Mo. App. 473; Glasscock v. Ry. Co., 86 Mo. App; 114.]
Defendant contends that the plaintiff .was not a proper party, hut that the action should have been in the name of the consignor. It is law that the party in whose name the contract for the transportation of cattle was made, was the proper party to sue. Who
As the contract was not introduced as evidence we are not able to determine whether or not it contained any recital to the effect, that plaintiff was the owner of thq cattle. The oral testimony, however, does show that they were shipped in the name of Silvias, the agent, and that he was the consignor. But, however that may he it is not a matter the defendant can take advantage of at this late day. As the defect of party plaintiff was disclosed by the petition, defendant should have taken advantage of it by demurrer, otherwise he has waived it. There are other errors assigned which we do not think are of sufficient importance to require discussion.
The error of the jury in estimating plaintiff’s damages upon the basis of 112,23o1 pounds, the weight of ninety head of cattle instead of upon the eighty-eight head, was an excessive verdict. As however, the plaintiff has signified his willingness to enter a remittitur of $19.00, which is a sufficient amount to cover the excess, we will affirm the judgment on condition that he make such remittitur within ten days from the filing of this opinion, otherwise the judgment will stand reversed.
Rehearing
ON MOTION EOR REHEARING.
In the opinion in this case it is stated that the petition showed on its face the defect of party plaintiff if there was such, in which we were incorrect and the inadvertence is made the basis for the motion for a new trial. The error was not material, as all the evidence showed that the plaintiff was the owner of the cattle, and it was shown beyond dispute that the agent had no authority from him to ship them in his, the agent’s name, as consignor and consignee, and for that reason plaintiff was the proper and necessary party.
As the action is to recover damages for a breach of duty it is an action ex delicto, the- plaintiff was the only party who could maintain it. Motion for rehearing overruled.