167 Mo. App. 75 | Mo. Ct. App. | 1912
This is an action by a shipper of live stock against a common carrier to recover damages caused by the negligent delay of the carrier in the transportation of the stock to market. A trial of the issues raised by the pleadings resulted in a verdict and judgment for plaintiff in the sum of two hundred and fifty dollars. After unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed.
The items of damage alleged in the petition are: First, loss on account of depreciation in the value of sheep at the Kansas City market during the period of the unnecessary delay amounting- to $20.80; second, loss caused by shrinkage in weight, $220.80; third, loss occasioned by the failure of defendant to deliver six of the sheep, $25.26, and, fourth expense for extra feed, $15.
These different elements of damage were submitted in the instructions given the jury at the request of plaintiff. All are supported by substantial evidence except the first. As to that item there is no evidence
The written contract, which proof shows was signed and delivered at the time, stated that in consideration of a reduced rate the shipment would be carried on terms restrictive of defendant’s common law liability among such terms and conditions being the following: “That the second party hereby releases and waives any and all cause of action for damages that may have accrued to him by any written or verbal contract prior to the execution hereof.” Plaintiff’s answer to this argument is that the cause of action pleaded in the petition is founded on defendant’s breach of its common law duty as a common carrier to> act with reasonable promptness in the despatch of a shipment received for transportation and, therefore,, being a cause sounding in tort and not in contract was not included in the causes expressly released by plaintiff in the written contract executed after the damages accrued.
Turning to the petition we find from its phraseology the expression of an intent to allege a cause for the breach of a common law duty and not for the violation of a shipping contract. Defendant calls our attention to the use by the pleader of certain words such: as “consideration” and “agreed” which are terms generally employed in the averment of certain elements of a contract. The use of such terms while indicative of an intent to plead a cause founded on con-
The error we have noted in the instructions on the measure of damages may be cured by a proper remittitur and on condition that such remittitur be filed within ten days the judgment will be affirmed; otherwise it will be reversed and the cause remanded.