Pacific Express Co. v. Emerson, 101 Mo. App. 62

Pacific Express Co. v. Emerson

101 Mo. App. 62 | Mo. Ct. App. | 1903

BLAND, P. J.

1. The principal contention of appellant is that the court erred in refusing to give instruction No. 9.

*75The counterclaim of defendant alleges two grounds of negligence as causing the injury complained of: first, that plaintiff: “so negligently conducted and so misbehaved in regard to the same in its calling as carrier that said jack was injured and contracted a disease while in plaintiff’s keeping from the effects of which it died, ” etc.; second, that thirty-six hours was a reasonable time for transporting the jack from Bowling Green to Wells, and that “plaintiff failed to deliver the said jack at Wells, Texas, within thirty-six hours pursuant to its agreement, but on the contrary so negligently and carelessly conducted and so misbehaved in respect to the same in its calling as a carrier, that plaintiff failed to deliver said jack at Wells, Texas, until five days from the time said jack was delivered to plaintiff and thereby injuring and diseasing said jack and causing its death. ”

The negligence relied on is, first, that the plaintiff was negligent in caring for the jack while in transit whereby it became diseased, etc., and the second, that the transportation of the jack was unreasonably delayed by reason of which he became diseased, etc. We may dismiss the second allegation of negligence with the remark that there is no substantial evidence in support of it.

Instruction No. 9, asked by the plaintiff and refused by the court, specifically directed the attention of the jury to the only negligence which the evidence tends to prove and correctly declared the law to be that if this negligence did not cause or contribute to produce the disease of which the jack died the verdict should be for the plaintiffs, and it was error to refuse it, unless it is covered by other instructions given. It seems to us that instructions Nos. 3 and 3| given, covered all that was included-in No. 9 refused. In the two given the jury was told in plain and direct terms that plaintiff was not liable on the counterclaim, unless the disease of which the jack died was caused by some negligence of the plaintiff, and that the burden was on defendant to *76prove that negligence and that it caused the disease of which the jack died.

We think the evidence tends to show that the plaintiff was negligent in permitting the j ack to remain down in the crate while in transit. It is true that the route agent of .plaintiff testified he had no sufficient force at his command to raise the jack up, but this is no excuse for the negligence. If no sufficient force was at hand it should have been procured. The duty of plaintiff was to safely transport the animal and when it got ■down in the crate it was not in a safe condition, and the duty of the plaintiff was to remedy this situation by putting the jack on its feet.

The evidence is that the jack was sound and in good health when received by the plaintiff for shipment and that such animals, if allowed tó remain down in a car or vessel, become paralyzed in their legs and will die if not speedily relieved by getting them on their feet. This evidence strongly tends to show that the negligence of the plaintiff in permitting the jack to remain down caused, or directly contributed to its disease and death.

We think the evidence is abundant to support the verdict and that the instructions, taken as a whole, correctly declared the law of the case.

2. It was error to render judgment against TIos-tetter and Jones, who were not parties to the suit bur' mere sureties of the plaintiff, for the costs. The judgment, as do them, is an absolute nullity. But this does not affect the judgment against the plaintiff as it is not injured thereby and is in no condition to complain thereof. A judgment at law may be good as to one and bad as to another defendant or party named in the judgment. State ex rel. v. Tate, 109 Mo. 265; Neenan v. City of St. Joseph, 126 Mo. 89.

The judgment, as to Hostetter and Jones, being void, it is as to them hereby vacated, but as to plaintiff *77it is in all things affirmed.

Rey burn and Goode, JJ.r concur.