Guinn v. Wabash, St. Louis & Pacific Railway Co.

20 Mo. App. 453 | Mo. Ct. App. | 1886

Philips, P. J.

I. A reversal of this judgment is sought principally on the ground that the petition does not state facts sufficient to constitute a cause of action. It is-first objected that it is not averred that defendant had any knowledge that-plaintiff was shipping the stock for' sale in any particular market, nor that the contract was-made with reference to the fluctuations of the Chicago-live stock market, etc.

It is a sufficient answer to this branch of the case to say that no recovery was had on account of this fluctuation and consequent loss to plaintiff, as by the first instruction given by the court it expressly declared that under the pleadings and evidence plaintiff' could not recover on this account.

The petition, however, contained a good cause ol action aside from this matter.

The defendant, recognizing the obligation which the-law imposes upon it as a common carrier of freight and live stock, to provide itself with all reasonable facilities- and appliances for the transportation of such goods and stock as it holds itself out to the public as ready to-engage in carrying, when offered (Hutch. Car., sect. 292), undertook to excuse the delay, by averring and showing-that a bridge over its line was disabled, whereby it was forced to reach Chicago by another route and over another line of road, which unavoidably delayed its cars and that it was pressed with other orders for cars, etc. But, without more, this was not in law a sufficient justification. It is the duty of the carrier, when applied to for cars, to advise the shipper of the situation and circiimstances which would likely occasion unreasonable delay. ‘ ‘He is not bound to provide in advance for extraordinary occasions, nor for an unusual influx of business ; neither will he be-excused for not being provided with a sufficiency of conveyances and other means for transportation of that which he may reasonably expect to be offered. And while an nnnsnal press of business may justify his refusal to accept the goods which may be offered, if, having provided himself with reasonable facilities, he finds it impossible, from previous engagements, to commence its shipment according to the usual and regular course of business, yet if he do accept the goods without notice to the shipper of the circumstances, and obtaining assent, either express or implied, to the delay, he becomes bound to carry the goods within a reasonable time, and he will not be heard to say that his delay was caused by such contingency. He must, at his peril, inform the shipper of the necessary delay; and even though it may occur from such cause upon a connecting route over which he has bound himself to carry the goods to destination, which may not be known to him at the time of acceptance, he is liable for any unreasonable delay in the transportation, and such unavoidable difficulty, though wholly unknown and unanticpated, will not excuse him.” Hutch. Car., sect. 292.

This doctrine is recognized and affirmed by our supreme court in Pruitt v. Ry. Co. (62 Mo. 539.)

The defendant, so far as disclosed by the abstract of the record, did not advise the plaintiff of any of the hindrances to a shipment, within a reasonable time, at the time he tendered the hogs, nor when defendant received them in its pens.

II. It is next alleged against the sufficiency of the petition that the twenty-seventh day of November, 1881, was Sunday, and that a contract to be performed on that day cannot be enforced, as being contrary to the statute. Sect. 1578, Rev. Stat. It may be conceded that a contract, though entered into on a secular day, if for work •or labor to be performed on Sunday, other than household offices of daily necessity, .or charity, or. other works •of necessity, is illegal.

It may also be conceded to defendant that in the preceding part of the petition it is stated that the cars were to be furnished on the twenty-seventh of November, 1881, which was Sunday. But this may be treated as matter of inducement. The real gravamen and substantive part of the petition is contained in the subsequent averments, that on or about that day the plaintiff delivered to defendant, in its stock pens, hogs to be shipped to Chicago within a reasonable time ; that defendant so received them and undertook to ship them without unreasonable delay; and that it had broken this undertaking as a common carrier. For this the law gives the plaintiff a right of action. As said by the court in Pruitt v. Railroad supra: “The reception of the hogs in the pens of the company (omitting all consideration of the promise or contract of the station agent) was equivalent to an obligation to forward without unnecessary delay.

While the company could not lawfully be required to furnish cars on Sunday to load the hogs and move them, yet having received them into its pens for transportation, the law imposed upon it the duty as a common carrier to ship them after that day without unreasonable delay. The gist of this section is the negligent delay in shipping the hogs, which extended far beyond this Sunday. In this respect we think the case comes within the rule recognized by the supreme court of the United States in Powhatan S. Co. v. Railroad (24 How. 247-8.)

The defendant’s answer and instructions clearly show that it regarded the issue as above indicated. Neither the defendant’s nor the plaintiff’s evidence showed that the cars were to be furnished on Sunday.

III. The instructions given by the court manifest that it found from the evidence that the delay in furnishing cars and making shipment of the hogs was unreasonable and without justification. An examination of the evidence satisfies us that the finding of the court was justified. At all events with its conclusion on the conflict of evidence we will not interfere ; especially must we so hold in view of the fact that the defendant failed to show that when the plaintiff’s hogs were received for shipment the defendant advised him of any obstacles in the way of an immediate shipment.

The other judges concurring,

the judgment is .affirmed