124 Mo. App. 545 | Mo. Ct. App. | 1907
(after stating the facts). — 1. An instruction, peremptorily directing a verdict, was requested by defendant’s counsel and refused. This action of the court is assigned and argued as error, on the theory that the loss in this case was entailed solely by the act of God, unmixed with any neglect of duty on the part of the defendant. Several cases were cited sustaining the well-established doctrine that there is no liability when the loss occurs solely by the act of God, or from causes, such as the operation of the elements, over which the defendant had no control, and could not reasonably be foreseen or anticipated, as probabilities por
2. It appears that the freight was not prepaid by the plaintiff and nothing was said between the parties with respect to the matter. No special contract was made with reference to credit, the entire transaction being the plaintiff offered the car of corn for shipment, defendant accepted it, and issued to plaintiff its bill of lading, making no requirement as to freight in advance.
3. As stated, the car was shipped by plaintiff, consigned to the plaintiff at Wichita Falls, Texas, shipper’s order, with directions to notify E. G-. Rail, and it appears from the evidence of the plaintiff’s president that
4. The bill of lading stipulates, in event of loss, “the amount of loss or damage shall be computed at the value or cost of the (corn) . . .’ at the time and place of shipment.” It does not appear that this stipulation is supported by a reduced rate of freight or other special consideration. There was no direct evidence introduced as to the value or cost of the corn at St.
In view of the validity of the stipulation mentioned, counsel for defendant argues its peremptory instruction should have been given. This cannot be true, for on any view of the case, plaintiff would be entitled to nominal damages for the breach. [Rogan v. Railroad, 51 Mo. App. 665, 672.] Therefore this instruction was properly refused on this feature of the case and with this instruction out of the way, the question now argued is not even suggested in the record before us. Now there is no doubt that had the evidence been admitted over defendant’s exception or had the court given a misdirection to the jury with respect thereto, or refused to give proper direction thereon, under the authorities cited by the defendant, a reversal of the judgment would result,for then the matter would have been brought directly to the attention of the court and the erroneous ruling
Finding no reversible error in the record, the judgment will be affirmed. It is so ordered.