128 Mo. App. 420 | Mo. Ct. App. | 1908
This suit was brought by a shipper against a common carrier to recover the value of a shipment of goods lost in transit. A jury being waived by agreement of parties, the court found in favor of defendant on the pleadings and admitted facts, and plaintiff brought the case here by appeal.
The cause of action pleaded in the petition is “that on or about the 26th day of May, 1903, the plaintiff delivered to the defendant for transportation from Great Bend, Kansas, to Boston, Massachusetts, and defendant accepted and undertook to transport twenty-five tubs of butter containing fifty pounds each, twenty-five tubs of butter containing thirty pounds each and twenty-six tubs of butter containing twenty pounds each consigned to Lamson & Go., Boston, all of which belonged to the
In the answer, defendant admitted that, as a common carrier, it received the butter from plaintiff for transportation to the consignee at Boston, and that it failed to make delivery. Two defenses are interposed: First, “that when the cars in which said butter was being carried arrived at Argentine, in the State of Kansas, the same were overtaken by an extraordinary and unprecedented flood of water, wholly beyond the control of this defendant, which inundated and overspread the entire surrounding country, including the tracks and yards of this defendant; and that flood, which was an act of God, entirely destroyed said consignment of butter on M'ay 31, 1903.” Second, a statute of Kansas is pleaded which provides that an action of this character shall be barred in three years after the cause of action has accrued and it is alleged, in substance, that this statute should be appi ied to defeat a recovery by plaintiff, since the present suit was not brought until after three years had elapsed from the loss of the property.
The following admissions were made by the parties at the trial: “That ever since 1901, there was in full force and effect in the State of Kansas section 4446 of the General Statutes of Kansas as set out in defendant’s amended answer. . . . that the shipments referred to in the plaintiff’s petition were delivered to the defendant by the plaintiff at Great Bend, Kansas, for
Defendant then moved for judgment on the pleadings and admissions. The motion was sustained and judgment entered for defendant.
For the purposes of the motion for judgment, defendant, in effect, eliminated the defense pleaded in the answer, that the property, was destroyed by the act of God, and relied for defense on the sole proposition that the cause of action accrued at Argentine, Kansas, and was barred by the Statute of Limitations of that State, which under the provision of section 4280, Revised Statutes 1899, must be applied in the courts of this State. In this posture of the case, we must assume as established the facts that defendant, as a common carrier, accepted the shipment at Great Bend, Kansas, for delivery at -Boston; that it failed to deliver, and that such failure was the result of the loss of the property at Argentine by some tortious act or neglect of defendant. In other words, the motion necessarily is based on the hypothesis
It will be observed that the petition is carefully drawn to plead a cause of action ex cleUcto as distinguished from one in the nature of assumpsit founded on a breach of the contract of transportation. The cause of action alleged is the failure of defendant to discharge its common law obligation to deliver the property at its destination. Plaintiff takes the position that the breach of duty occurred at the place of 'delivery and, consequently, that the cause accrued at that place and that, the cause of the failure to deliver (such as an act of God or the public enemy) is immaterial as long as it is not shown to be one which would excuse the carrier from liability under the common law. On the other hand, defendant argues that the act of the carrier which disabled it from discharging its common law duty to deliver is the real cause of action and that the fact that the property was not delivered is but evidentiary and in no sense creative of the cause of action.
We are of opinion that plaintiff has the better of the argument and that the learned trial judge erred in sustaining the motion for judgment. At common law, the obligation of a common carrier with respect to the subject of transportation is that of an insurer. It is liable for loss of or damage to the property regardless of the nature of the cause of injury. To this rule, there are certain exceptions. If the carrier can show that tbe proximate cause of its apparent breach of duty was some overwhelming force such as the act of God or the public enemy, or that it resulted from unavoidable accident, from the fraud or fault of the owner of the goods, or from some inherent defect or infirmity of the goods, themselves, -which has caused the injury, it will be relieved of its obligation of an insurer and will not be held to respond in damages for the loss or injury sustained. In the absence of proof of such excusing fact, the burden
But it is argued by defendant that the admission made by plaintiff “that if the defendant in muy way failed to perform any duty which defendant owed to the plaintiff such failure only occurred at Argentine, Kansas, on the 31st day of. May, 1903,” made the tort, if any, which occurred at that place the ground of his action. We do not agree with this contention. Construed in the light of the pleadings and of the other facts admitted,, we think it was not within the contemplation of the parties to attempt to change the cause pleaded in the petition and that the parties meant only to agree that if the goods were lost through the misconduct of defendant, such misconduct occurred at Argentine; Whether the fact of the place where the goods were lost was admitted by the parties or was made a matter of proof, it would be immaterial to the cause pleaded in the petition and, in any event, could he only material to prove or disprove the defensive issue that the goods were destroyed by an act of God or by some other cause that would excuse the carrier from its common law liability.
It follows from what has been said that the judgment must be reversed and the cause remanded.