147 Mo. App. 38 | Mo. Ct. App. | 1910
Case for damages against defendants as common carriers. Defendants operate a steamboat line on the Mississippi river; they keep boats, among them the Stacker Lee, plying between the ports to the south of St. Louis and this city, carrying freight and passengers. Petition alleges plaintiff, on January 23, 1907, delivered to the captain of the Stacker Lee, on board the boat at Richard’s Landing, eleven head of steers, which were fat and had been corn-fed during the fall and winter and were of the value of $250; the captain of said boat representing defendants agreed safely to transport said cattle and deliver them to Smith Bros. & Sparks, at St. Louis, Missouri, giving plaintiff at the time a bill of lading which is attached to the petition as part of it; defendants, through said captain and other agents and employees on the steamboat, committed breaches of the contract of shipment, in this: They failed to deliver the cattle according to the contract and said captain and employees permitted the cattle to be delivered to other persons than those to whom they were consigned; allowed plaintiff’s cattle to become mixed with other and inferior cattle so his were delivered to
‘‘'The court instructs the jury that if you believe and find from the evidence that on or about the 23d day of January, 1907, the plaintiff contracted with the defendants, through their agents or legal representatives to transport 11 head of cattle, said cattle at the time being in good condition, on the Mississippi river, from Richard’s Landing in Pemiscot county, Missouri, to the city of St. Louis, Missouri, which cattle were consigned to Smith Bros. & Sparks, and that said cattle were delivered to the defendants, through their authorized agent, or legal representatives in good condition, and by them placed on board the steamboat Stacker Lee, the said boat being in charge of defendants’ agents, servants,. and employees, and that defendants failed to deliver said cattle to the plaintiff’s consignees in good condition, as per their said contract, being prevented only by the act of God or the common' enemy, and that by reason of the failure of the defendants so to deliver said cattle, you find and believe from the evi-. dence the plaintiff has sustained damage, you will find*45 for the plaintiff in such sum as the proof shows he has been damaged, not greater than the amount sued for; and in estimating the plaintiff’s damage you should take into consideration, should you find that plaintiff’s damage resulted from a failure of defendants to deliver plaintiff’s said cattle so transported, to plaintiff’s consignee, and that plaintiff’s said cattle, by reason of said failure -were delivered to other and different parties than plaintiff’s consignee, and that plaintiff received pay for other and inferior cattle, you should take in consideration the difference in the quality of plaintiff’s cattle and those he received pay for, according to their market value, in the city of St. Louis, and the difference in the weight of the cattle.”
These instructions were given at defendants’ instance :
“The court instructs you that upon the plaintiff rests the burden of proof and unless you believe and find from the evidence that the plaintiff has proven the issue of facts and the allegations of his petition by the greater weight or the preponderance of the testimony over the testimony of the defendants, your verdict will- be for the defendants.
“The court instructs you that before you find for the plaintiff in any sum whatever, you must believe and find from the evidence that after plaintiff’s cattle were delivered to the steamboat Stacker Lee, and before they were delivered by the master, servants or employees of said steamboat to the clerks, servants or employees of the Union Stockyards in the city of St. Louis, Missouri, said cattle of plaintiff were mixed up with or exchanged for other cattle of inferior grade, thereby causing plaintiff’s lot or shipment of cattle to depreciate in value; and in this connection you are further instructed that if you believe and find that said Union Stockyards were, in January, 1907, and prior thereto, the usual and customary place for defendants’ steamboats to deliver all shipments of live stock to the various*46 live stock buyers and commission merchants of live stock in the city of St. Louis, then the delivery of plaintiff’s cattle to the stockyards was in law a delivery to plaintiff’s consignee, Smith Bros. & Sparks, and your verdict and finding should be for the defendants.
“The court instructs you that if you believe and find from the evidence that the cattle of the plaintiff were kept separately penned up while in the custody of the defendants’ servants, agents and employees, and without being mixed up or intermingled with other cattle, and were delivered to the clerk, servants or employees of the Union Stockyards in the city of St. Louis, Missouri, and that said Union Stockyards were, in January, 1907, and prior thereto, the usual and customary place used by the defendants’ steamboats for discharging and unloading all of its shipments of live stock, then such delivery of plaintiff’s cattle was in law a delivery to the consignee of said shipment, Smith Bros. & Sparks, and your verdict and finding should be for the defendants.”
It is contended for defendant the evidence failed to show any of plaintiff’s cattle were not delivered to the consignee at St. Louis, but we think otherwise. The testimony yields the impression that some of the cattle turned over to the consignees were never shipped bjr plaintiff, and would uphold that conclusion; for his were all steers and McNeily testified there were two or three cows among the lot delivered to him as plaintiff’s.' The evidence for plaintiff was directed to prove Oakley’s cattle were substituted for his, but there was no direct proof this occurred, and if any animal Avhich was not plaintiff’s was delivered as his, it may have been some of the other cattle on the boat. This is immaterial, the questions being whether plaintiff’s cattle were delivered, and if not, how many of them were omitted from delivery and the loss to him. His counsel insist defendants were responsible for the cattle in the stockyards and until they were turned over to McNeily
We have omitted to copy the first two instructions granted for plaintiff because they stated abstract propositions of law, and though probably correct, should not have been given, as they afforded the jury no aid. The third instruction, which is copied, supra, is unsound and confusing. For one thing it was so drawn as to make defendants responsible even though they were prevented from delivering the stock by the act of God or the public enemy,'which is a good excuse for the failure of a carrier to deliver goods as per the bill of lading, and no doubt was intended to advise the jury as to the exception to defendants’ liability; but as the instruction reads, they were made liable even if they failed to deliver them from one of those causes. This would be harmless error because defendants did not resist recovery on the theory the cattle had been lost from one of said causes, but contended they were delivered to the consignees. The instruction is otherwise inaccurate and misleading. It propounded no proper measure of damages, in case plaintiff was found entitled to recover. The jury were told to take into consideration in ascertaining the amount of damages sustained, the difference in the quality of plaintiff’s cattle and those he received pay for according to their market value in the city of St. Louis, and the difference in the weight of the cattle. No evidence was introduced to show what plaintiff’s cattle weighed. McNeily testified the lot turned over to him as plaintiff’s weighed six thousand pounds, but as plaintiff was disputing those were his cattle, that testimony only went to prove the cattle received by McNeily were not plaintiff’s be- ' cause they weighed less than Oakley’s, and the former’s
The judgment is reversed and the cause remanded.