132 Mo. App. 642 | Mo. Ct. App. | 1908
On June 21, 1903, plaintiff delivered a car of corn to defendant railroad company at the station of Levasy, Missouri, and defendant undertook for hire to transport the corn to Ennis, Texas, and there to deliver it to plaintiff, the consignee. Plaintiff alleges that the property was not delivered and prays judgment for its value. The petition is in three counts. In the first, a breach of the common law duty of the carrier to deliver is alleged; in the second, a conversion of the property, and in the third, a breach of a contract to deliver in a reasonable time.
Defendant alleges in its answer that it permitted plaintiff to load the corn in a car at Levasy on June 12, 1903, as an accommodation to him; that the property at the time was in danger of destruction by the great flood of the Missouri river then prevailing, and that it would have been destroyed had it been left in the crib where it was stored;. that on June 21th plaintiff requested defendant to issue him a bill of lading for the transportation of the car to Ennis, Texas, and defendant complied with the request on the understand
Evidence introduced by defendant shows that the delay in forwarding the car was agreed to by plaintiff but this is contradicted by the evidence of plaintiff. It was shown that from four to seven days would have been a reasonable time to consume in the transportation and it .is conceded that the corn was not delivered to plaintiff or on his order, but was sold by the connecting carrier and net proceeds of $39 realized for the owner, which, however, is still in the hands of the connecting carrier.
At the request of plaintiff, the court instructed the jury as follows: “The eourt instructs the jury that under the pleadings and undisputed evidence in this case, defendant on June 24, 1903, received of plaintiff
“If, therefore, you further find and believe from the evidence that such delay in the transportation of said corn was without plaintiff’s consent or knowledge, and that the same was unnecessary and unreasonable, and that by reason of said delay plaintiff’s consignee of said corn at Ennis, Texas, refused to accept the same, and that defendant thereupon failed or refused to comply with'its contract by retaining said corn for plaintiff as warehouseman, or storing said corn in a public warehouse at plaintiff’s risk and expense and notifying plaintiff thereof, and otherwise disposed of said corn without accounting to plaintiff for its value, then defendant was guilty of breach of contract with plaintiff and of conversion, and liable to plaintiff for all damages sustained by reason thereof in a sum not to exceed the sum of $298 with six per cent from July 22, 1903, and you will so find on third count of plaintiff’s petition.
“The court instructs the jury that under the terms of the bill of lading introduced in evidence the defendant contracted with plaintiff to carry the car of corn in question from Levasy, Missouri, to Ennis, Texas, and thereby became responsible to plaintiff and liable for the acts of defendant’s connecting carriers over whose lines said corn may have passed. And if you find that said corn was converted without accounting to plaintiff for the value thereof, then your verdict must be for plaintiff on third count of petition, even though you further find that said corn was converted by some other road than the defendant.
“The court further instructs the jury that in case
The following instructions were given at the instance of defendant:
“The court instructs the jury that defendant was not bound to transport plaintiff’s corn to its destination in any particular length of time or by any specified date, and your verdict therefore must be for the defendant, unless it has been proven to your reasonable satisfaction by the greater weight of all the evidence in this case that defendant did not transport said corn to its destination in a reasonable time, taking into consideration the then existing circumstances.
“The court instructs the jury that it devolves upon plaintiff to prove to your reasonable satisfaction by the greater weight of all the credible evidence in this case that defendant did not deliver the corn in controversy here to the consignee at Ennis, Texas, and unless you believe plaintiff has so proven said failure to deliver, your verdict must be for the defendant.”
The jury returned a general verdict for plaintiff in the sum of $347.50.
Defendant argues that the court erred in refusing its request for an instruction directing a verdict in its favor on the first and second counts of the petition, but we think the evidence was sufficient to support a verdict on each of these counts as well as on -the third eount, and that the causes of action pleaded in the several counts might be joined in one action. Recently we held that “the owner of goods lost in transportation by a cause which will not relieve the carrier from liability may have several different causes of action, any
The different counts in the petition before us deal with the same transaction, the same subject-matter, call for the assessment of the same damages, and the verdict on one undoubtedly would afford a complete bar to the prosecution of a future action on a cause pleaded
Point is made that the • court erred iu admitting in evidence, over the objection of defendant, the following letter written by the freight claim agent of defendant:
“St. Louis, Mo., November 9, 1903.
“Linton Grain Go., Kansas City, Mo.
“Gentlemen: In reply to your favor August 23rd, beg to advise corn from I. M. 11376 was sold, with a net result of $39, which amount is in the treasury of the H. & T. O. R. R. subject to claim.
“Please send your claim direct to W. H. Taylor, acting general freight agent, Houston, Texas, giving reference in your letter of transmittal to W. T. 5443 and my R. O. 57568. Yours truly,
“J. S. Tustin, P. O. A.”
This letter was in response to one written Mr. Tustin by the Linton Grain Go. in which the writer said “We are advised by your commercial office here that car 11376 billed by W. J. Mosely, Levasy, Mo. to W. J. Mosely, Ennis, Texas, has been by your orders sold at public auction at Houston, Texas. We hold, and always have held, the bill of lading on this car dated June 24, ’03. Will you kindly furnish us the amount received by the Missouri Pacific from the sale of this car.” The first objection urged against the admissibility of Mr. Tustin’s letter is that it was “hearsay evidence and only admissible on the theory that it contained an admission against the interests of defendant, and it was not shown that J. S. Tustin, who wrote it had any authority to make any admission binding defendant, or that the scope of his duties was such that such authority might be inferred.”
This ground cannot be considered for the reason that it was not included in the objection made at the
Further, it is urged that there is no evidence in the record of the market value of the grain at Ennis, Texas, at the time when it should have been delivered to the consignee had delivery been made in a reasonable time. Mr. Linton, introduced as a witness by plaintiff, testified that the reasonable market value of the grain at that time and place was seventy-three cents per bushel, the price at which it had been sold, and we are of opinion he showed himself to be qualified to testify as an expert. Other points are made, but they are clearly without merit and need not be noticed. A careful inspection of the whole record convinces us that the case was fairly tried, properly submitted in the instructions given the jury, and that the verdict is for the right party. Accordingly the judgment is affirmed.