184 Mo. App. 424 | Mo. Ct. App. | 1914
Defendant is a common carrier of freight from Centerview, Missouri, to Kansas City, Kansas. Plaintiff’s action is for damages occasioned by defendant failing to furnish him cars and transport thirty-five head of fat cattle to the market at the latter place. He recovered judgment in the circuit court.
Plaintiff’s petition alleged a failure on defendant’s part to furnish cars and to transport the cattle, as and when it was in duty bound to do. And that afterwards, on the next day, cars were furnished and the cattle transported to destination, but the delay injured the cattle by exposing them overnight to severely inclement weather and they arrived at destina
Plaintiff filed, and the court sustained, a motion to strike out all the answer concerning the written contract limiting liability, and as to the Interstate Commerce Commission. The defendant then went to trial on that part of the answer remaining, which was principally a general denial.
The ground upon which the motion was sustained was that the petition declared on a carrier’s common law duty to carry and not on a verbal contract, and that therefore the written contract afterwards executed did not relate, in any way, to the violated duty of defendant as a carrier. That that part of the answer was not responsive and did not constitute any defense under the following cases: Baker v. Railroad, 145 Mo. App. 189; Bratton v. Railroad, 167 Mo. App. 75; Vivion v. Railroad, 172 Mo. App. 352. In answer to this the defendant insists that plaintiff’s petition declares on a verbal contract to furnish the cars and transport. We do not think so. In order to bring about a breach of the common-law duty of a carrier to transport freight, there must be, of course, some request for a performance of that duty and a refusal or failure, on the part
Defendant next insists that there was no evidence in the cause to show that the failure to transport the stock was through its fault, or by reason of its negligence in delay, or otherwise. We think there was. The cause was submitted to the trial court on an agreed statement of facts, which contained the following: “That plaintiff would testify that defendant’s said general agent told him the reason the train did not come on January 3, 1911 (the day the shipment was to be made) was that defendant’s servants abandoned it that afternoon because of the cold.” We think that was competent evidence and that it shows a reason for failure to take the cattle which is not a legal excuse. If a carrier may, through its agents and servants, abcmdon its duty “because of the cold” in this climate, the service of a common carrier would become too uncertain for all practical purposes.
The judgment is affirmed.