126 Mo. App. 707 | Mo. Ct. App. | 1907
Plaintiff shipped a lot of household goods from Pinckneyville, Illinois, to Columbia, Missouri, and when received by him at the latter place they were in a damaged condition. He charges that the damage was caused by the defendant and brought this action on account thereof. He prevailed in the trial court.
It appears that the Illinois Central Railroad was the initial carrier. That it transported the car in which the goods were placed to the Mississippi River where it was received by the Bridge Ter. Ry. Co., and taken to St. Louis where it was received by this defendant and transported to Columbia. There was evidence in plaintiff’s behalf tending to show that when the goods were shipped at Pinckneyville they were in good order and condition. That when they were received by plaintiff at Columbia they were badly damaged. The car, judging from condition of the contents, presented an appearance as though it had been in a wreck, or off of the track. There were various estimates of the amount of damage; some of the evidence tending to show a greater amount than was allowed the plaintiff by the verdict.
The contract of shipment contained the letters O. R. and S. L. C., which, according to testimony, indicated that the shipment was made at the “owner’s risk” and
But defendant claims there was no- showing of negligence. The plaintiff relied upon his showing of the delivery of the goods in good condition to the Illinois Central Railway, of their delivery to the bridge railway, and then, with no change in their condition appearing, their delivery to this defendant who delivered them to plaintiff. Defendant being the last carrier, it is conceded that the presumption would ordinarily obtain that it injured the property. But it contends that the goods being at the owner’s risk, it was only liable for negligence and that there was no evidence of that. We think there was. Assuming as, in view of the verdict, we must, that the goods were in good condition when shipped at Pinckneyville, no charge appearing when delivered to defendant and then a changed and damaged condition when delivered by defendant to plaintiff, it may be inferred that they became damaged while in defendant’s charge. And being damag'ed while in defendant’s charge, it may be inferred they became so through its negligence. For, ordinarily, with proper equipment and handling, freight is not destroyed or substantially injured in a shipment. But in this case the evidence showed the goods in such condition in the car when delivered to plaintiff, as to indicate an extreme disturbance of the car.
The contract of shipment required a written notice of claim for damages to be made within thirty days. No written claim was made. But the evidence tended to show that defendant’s agent attended the opening of the car with plaintiff, listed the damaged goods and made report thereof to the defendant. It further appeared that defendant entered upon an investigation of the damages and at no time objected to the form of notice. In such circumstances a notice was not necessary.
Much of defendant’s objection to the judgment is founded on the petition. We do not consider the objection as sound. And the motion to make it more definite and certain was properly overruled. There were also objections to any evidence for the reason that it did not state a cause of action, and instructions were asked which were designed to prevent a recovery by reason of allegations in the .petition. In the first place, while the practice of making the objection that a petition does not state a cause of action is tolerated by the courts, it is not commended. If no demurrer is interposed and the trial is entered upon, every reasonable intendment will be made in favor of the pleading. In this case we discover no substantial objection. It is sufficiently clear from the allegations that the Illinois Central, the Bridge Terminal and the defendant form a continuous line of connecting common carriers from point of shipment to destination; and that the first undertook to deliver to the second and the second to the third and the third to the defendant. The evidence disclosed a lump sum for freight paid to defendant which was divided with the other carriers. [Live Stock Co. v. Railroad, 87 Mo. App. 330; Shewalter v. Railroad, 84 Mo. App. 589.]
We do not consider that error was committed by the court on instructions given for the parties. Together, they submit every hypothesis necessary for a proper determination of the case. Those refused for defendant wTere properly refused. While we have no means of knowing whether the proper amount was' allowed to plaintiff as damage and must accept the verdict in that respect, yet there is no doubt but that so far as a right to recover is concerned, the judgment was for thp proper party and it is affirmed.