51 Mo. App. 665 | Mo. Ct. App. | 1892
This action was brought to recover damages from the defendant, a railway carrier, for failure to deliver within a reasonable time a shipment of goods which the plaintiffs, through their agent, had committed to the defendant for.carriage from St. Louis, in this state, to Santa Anna, Texas. There was a trial before a jury,'at the conclusion of which the court directed the jury to return a verdict for nominal damages only. The propriety of this direction is the only substantial question upon this appeal.
It is necessary to an understanding of the question presented for decision to get a clear idea of the issues involved in the case. The petition states in substance:
“That the plaintiffs were copartners engaged in the milling business in the town of Santa Anna, Texas; that prior to July, 1890, the plaintiffs bought from the Wormer Machinery Company, in the city of St. Louis, Missouri, a large quantity of mill machinery, comprising a large number of parts, appliances and articles essential for the running of a flourmill, and directed the Wormer Machinery Company to ship the same to plaintiffs at*669 Santa Anna, Texas; that said machinery was delivered to defendant by said Wormer Machinery Company, in the city of St. Louis, properly marked and prepared for shipment and addressed to plaintiffs at Santa Anna, Texas, on the eighteenth day of July, 1890, that by the ordinary course of business said articles would have reached their destination on the twenty-seventh day of July, 1890; that on or abotit the time of shipment, and especially on the kventy-seventh day of July, 1890, the defendant was notified that the machinery so shipped toas for immediate use in the flour mill; that the articles were essential for the running of the mill, and great damage tvould ensue and wotdd continue to be suffered by plaintiffs in being deprived of said machinery, tohereby they ivould be deprived of theuse of the mill, and could not grind the grain they had on hand and offered to them to be manufactured into flour, and that plaintiffs were under heavy expense, etc.; that defendant negligently billed said goods to San Antonio, Texas, a point far distant from Santa Anna, although said goods had been plainly and distinctly addressed to said plaintiffs at Santa Anna, Texas; that, after defendant had been notified of the non-delivery of said goods, it failed to have the same recalled and transported to plaintiffs, and continued to neglect to make said delivery until September 3, 1890.”
The damages prayed for were as follows:
The rental value of the mill while lying idle from July 27, 1890, to September 3, 1890, $233.25. The average profit of grinding wheat at plaintiffs’ mill while it was so idle, which would have been the sum of $939.96; pay of miller during delay, $69; pay to other employes during said time, $242.50, making the aggregate sum of $1,484.71, for which judgment was prayed. The answer, after a general denial, set up that the defendant, on the said eighteenth day of July, 1890, received from the plaintiffs’ agent, at its depot in*670 St. Louis, certain pieces of iron pipe and castings, more particularly set forth in a bill of lading attached to the answer, which the defendant then and there undertook to transport for said plaintiffs to its next succeeding carrier, to be thence transported to the town of Santa Anna, Texas; that its receipt for said property, given before the issue of its bill of lading, was as follows:
“St. Louis, 9-18-1890.
“Received in good order by "Wabash Railroad Company from the Wormer Machinery Company Theo. K. Wormer, general manager, to be delivered to Rogan & Lambertson, at Santa Anna, Texas: [Here followed a catalogue of the articles, with nothing to indicate that they were intended for other use than for sale as articles of ordinary merchandise. This receipt or dray ticket then continued with the following recitals: ] No.-. Non-negotiable and subject to all the conditions and exceptions printed in the bills of lading commonly used by said company and known.as form 117.”
The answer then proceeded to state what the conditions and exceptions in the said form of bill of lading were. These conditions and exceptions.as thus pleaded, and also as proved at the trial, were, among other things, as follows: “Sixth. It is further agreed that the amount of loss or damage accruing to the owner of said goods, in so far as the same shall fall upon this or any connecting carrier, shall be computed at the value or cost of said goods at the place and time of shipment. ” The plaintiffs, by a reply, .put in issue the new matter set up in the answer.
The evidence adduced on behalf of the plaintiffs at the trial .showed that the shipment was made, as admitted in the pleadings, on the eighteenth day of July, 1890, by the Wormer Machinery Company, as the plaintiffs’ agent at St. Louis, from whom the
“Piping not arrived. Ship new supply piping by Schuyler. Order via Santa Ee.’
“Rogan & Lamberts on.”
This telegram was excluded by the court as evidence, on the ground that it was not competent under the plaintiffs’ theory of the case, and the plaintiffs saved an exception. The employe of the Wormer Machinery Company, who had shown the first telegram to the claim agent of the defendant, testified that he stated to the defendant’s claim agent the contents of this telegram and told him that the goods had not arrived, whereupon the latter stated that he was doing all he could to get them there. In this conversation the claim agent told the witness that the goods had been located at San Antonio, Texas, to which place they had been shipped through a mistake of defendant’s billing clerk, and that they would be delivered
It was admitted by counsel for the plaintiffs at the trial that the copy of the bill of lading attached to the answer was a correct copy of the bill of lading issued at the time of the shipment of the goods, and that the court should consider the bill of lading and dray ticket, as set forth in the defendant’s answer, as in evidence. On the other hand, it was admitted by counsel for the defendant — what the evidence conclusively showed— that the shipment had gone astray by the negligence of the defendant. On the question of damages there was considerable evidence adduced by the plaintiffs, tending to prove the suffering by the plaintiffs of the consequential damages alleged in the petition. Mr. Wormer, the manager of the Wormer Machinery Company, testifying for the plaintiff, stated in substance that such of the piping and fittings as were shipped in full lengths were merchantable goods, and had a market value in St. Louis, but such of them as had been cut were not merchantable and had no market value at St.. Louis. But no evidence was given tending to show what the market value of any of the goods at St. Louis was.
I. Upon this statement we must hold that the court committed no error in directing the jury to return a verdict for nominal damages only. In the first place, the amount of general damages recoverable was governed by the terms of the special contract embodied in the bill of lading, referred to in the dray ticket already quoted. Caples v. Railroad, 17 Mo. App. 14.
In opposition to the conclusion, that the damages are to be governed by the special contract, as it is admitted that the delay was occasioned by the negligence of the defendant, we are referred to several decisions in this state to the effect, that it is not competent for a common carrier to impose a contract on the shipper, limiting the amount of damages which may accrue through the negligence of the carrier. Such was the decision of this court, following several of the decisions of the supreme court and of this court, in Nickey v. Railroad, 35 Mo. App. 79. But in two subsequent cases, Doan v. Railroad, 38 Mo. App. 408, and Conover v. Express Co., 40 Mo. App. 31, this court again went over the subject, reviewing the decisions in this state and ■ 'concluding, on the authority of McFadden v. Railroad, 92 Mo. 343, which essentially modified the previous case of Harvey v. Railroad, 74
II. But, if the special contract were laid out of view, the plaintiffs could not under their petition recover the consequential damages claimed, for the reason that the evidence adduced by the plaintiffs utterly failed to make out the allegation of the petition, that the defendant was notified, on or about the time of shipment, and especially on the twenty-seventh of July, that the goods were for immediate use in the plaintiffs’.
III. Their petition, as already seen, alleges that, after the defendant had been notified of the non-delivery of the goods, it failed to have the same recalled and transported to the plaintiffs, and continued to fail
We, therefore, conclude that the circuit court committed no error in directing the jury to return a verdict for nominal damages only. The judgment is accordingly affirmed.