148 Mo. App. 428 | Mo. Ct. App. | 1910
(after stating the facts). — The first proposition made, among the twenty-one points in the very elaborate brief of the learned counsel for appellant, is that the rule that goods delivered in good order to an initial carrier are presumed to continue so until they get into the possession of the carrier which delivers them at the place of destination in a damaged
The proposition is also made by counsel for appellant, that in case of loss of goods, the market value must be determined in one market to apply to goods in good condition at that one market. Counsel cite in support of this Heil v. St. L., I. M. & S. Ry. Co., 16 Mo. App. 363. In that case it is distinctly held that a stipulation in the bill of lading, that the cost of the property at the point of shipment shall govern in case of loss, does not refer to damage or- deterioration while in transit, and that the measure of damages for the injury of goods while in transit is the difference between the reasonable market value of the goods at the point of destination when they should have arrived and their real value there in their damaged condition.' In Caples v. Louisville, etc., R. R. Co., 17 Mo. App. 14, under a like stipulation in the bill of lading as in this case, it was held that the measure of damage is the difference in value at the place of shipment. But by this instruction the court set two markets, that at the point of shipment and that at the point of destination. This instruction is erroneous. Complaint is also made to that part of this instruction which allows the jury to include in the damage, “such further amount as yon may find plaintiff for freight charges on said car.”
Another proposition strenuously argued and elaborately briefed by the learned counsel for appellant is on the plea of res adjudicaba,. It is suffi.cient to say of this that in the first place, it is not properly pleaded, as no final judgment is pleaded, the judgment as pleaded being merely a judgment of dismissal and for costs, and in the next place the record introduced in evidence shows in itself that it was a judgment of dismissal, by direction of the court, it is true, but not on a verdict or finding as on a trial before the court or the jury. That is to say, there is no final judgment finding for the defendant on the issue joined. Practically, the judgment of record and as pleaded, is of the same effect as if plaintiff had been forced by the ruling of the court to take a nonsuit, and whether he takes that voluntarily or is forced to take it by the action of the court in either case, it is a mere dismissal of the cause and not a judgment that can be pleaded in bar of any subsequent action between the same parties on the same subject-matter.
Much stress is laid upon the alleged error of the court in admitting in evidence the letter from the freight agent of the defendant to the plaintiff, which we have set out practically in full in the statement of the case. The objection made to this is that it is hearsay and as it is the only evidence in the case of the fact that the car was iced when loaded, that, if it had been excluded,
Serious complaint is made of the instructions as given and the refusal of those asked by the defendant. We have given the substance of them and see nothing either in those given or in those refused to the prejudice of the defendant, except the one as to the measure of damages. Those given are substantially correct and properly cover the issues and those refused either had been covered by those already given by the court, either at the instance of the plaintiff or of its own motion, were framed in such language as prevented the court from giving them, or were outside the issues joined in the ■pleadings.
One of the propositions most insisted on is that the court below erred in refusing the third instruction requested by defendant, that the contract under which the peaches were shipped only required the defendant to ice the car at Frankfort, Indiana, and if the jury found that had been done, defendant had complied with its contract and was entitled to a verdict. The answer contained these defenses: First, a general denial, second, a plea of contributory negligence on the part of plaintiff, his agents and servants in the loading of the peaches; third, that the bill of lading provided every service performed in hauling the peaches should be subject to the conditions of the bill of lading and one condition was no carrier should be liable for losses beyond its control or occurring beyond its own line; that the loss in question occurred from causes beyond defendant’s control and not on its line; fourth, that the contract of shipment provided no person should be liable in any event for more than the value of the goods at the time
On the argument, counsel for defendant in open court waived the point made in the brief as to the instruction on the measure of damages so that that is no longer in the case. We do not think the judgment should be reversed as excessive, after the remittitur entered by plaintiff. Wherefore, as all the points raised on the appeal, except the one on the measure of damages, and that one waived by the defendant, have been resolved against defendant, the judgment will be affirmed.