72 Mo. App. 13 | Mo. Ct. App. | 1897
The answer admitted the receipt of the plaintiffs’ hog for transportation and that such hog died while in transitu. The other allegations of the petition were denied.
There was a trial resulting in judgment for plaintiff and thereupon the defendant appealed.
I. The defendant’s first insistence is that the plaintiffs’ petition fails to state a cause of action in that “there is no allegation therein contained of any specific act of negligence or duty neglected.”
The plaintiffs’ petition alleges the receipt of the hog for transportation and the failure to deliver the same at the point of destination; that said hog died while in transit through the negligence of the defendant. It is, as we think, sufficiently comprehensive in its allegations to meet the requirements of the rules just adverted to. And while it is somewhat lacking in artistic finish, nevertheless we think it will be found to embody all the essentials required by the approved common law precedents in such cases. And even though the petition alleges no particular act of negli
The rules of the defendant forbade the opening of the door wider than the chain permitted on pain of dismissal from its service, yet the defendant’s messenger testified that he moved the sis hundred pound crate and opened the door half way; that he tied it back and then propped it open with a'block so that it could not close by sis or eight inches. This testimony the jury may have thought unworthy of credence. They may have thought it quite improbable that he opened the door at the risk of being discharged, or
During the transit-the hog became very uneasy and vicious and commenced to tear the crate to pieces. This continued about five minutes, at the expiration of which time he was found to be dead. It was proved by experienced shippers that it was their opinion from the manner in which it was testified the hog died that he had been smothered. These facts and circumstances tended to prove that the hog, while being handled by defendant, had been improperly and negligently deprived of the necessary air and water, in consequence of which he perished. This was sufficient to cast the burden on defendant to show diligence in the transportation. The plaintiff thus established his prima facie case entitling him to a submission to the jury. Hance v. Express Co., 66 Mo. App. 486; Hance v. Express Co., 48 Mo. App. 179. Whether the defendant’s evidence was sufficient - to rebut and overcome the plaintiffs’ prima facie case was a question solely for the jury.
It can not therefore be said that there was no evidence to carry the casó to the jury.
The contract price of the hog was $500. Hogs like the one in question are not bought and sold in the ordinary course of trade and are not known in the market. The plaintiffs’ hog therefore could have no market value. But a market value as signifying a price established by sales in the ordinary course of business is not necessary to a judicial valuation. The consideration of a market value only affects the mode of proving the amount of the loss and the elements by which it is to be ascertained. When there is a market value the measure of damages for which a carrier is liable for the loss of property entrusted to him for carriage is its value at the place of destination, less the usual or agreed charge for carnage. But where, as here, the property lost has no market value at the place of destination or elsewhere, the rule can not apply. The rule in such cases as this, i. e., where the property is without market value, is that the proof of value is generally by the judgment and opinion of witnesses.
The hog, as already stated, was of the breed known as Poland-China. He had been awarded the highest prize at the agricultural fairs of several states on account of his excellent form and breeding. One of the witnesses, an experienced breeder, testified that he considered the plaintiffs’ hog “one of the best, he had ever seen, and that he was of fine finish, thick back and stout legs.” Experienced breeders of Poland-China hogs who were acquainted with plaintiffs’ hog testified to his value. These witnesses resided in the states of Missouri and Nebraska, and no doubt, when they spoke of the value of such hogs as that of plaintiff they meant in the states where they resided. It must be presumed they referred to the values there in the absence of a statement to the contrary. The proof of value was the same at the place of shipment and destination and was the only kind of which the nature of the case was susceptible.
The judgment we think ought to be affirmed and it is accordingly so ordered.