Shoptaugh v. St. Louis & San Francisco Railroad

147 Mo. App. 8 | Mo. Ct. App. | 1910

GOODE, J.

Action for damages for defendant company’s failure to furnish plaintiff sufficient cars to ship 120,000 feet of oak logs of the value of $1920, and 60,000 feet of cypress logs of the value of $840, from the station of Terry to Chaffee, Missouri, during the months of July, August, September and October, 1907. Plaintiff averred he frequently demanded of defendant’s agent at Hayti, a station three miles from Terry, and the right place to apply, cars in which to ship the said logs, the agent promised to furnish them, but did not; by reason of this omission of duty the logs became damaged and depreciated in value and caused plaintiff a loss of $920, for which he prayed judgment. Besides a general denial, the answer said defendant furnished plaintiff all the cars at the station of Terry needed to transact the average business done with him there and consistent with defendant’s duty to its other patrons at said station and elsewhere along its line; that if plaintiff was prevented from making timely shipments of his logs by lack of cars during the interval mentioned, it was on account of the unusual pressure of business at the station, together with the unusual pressure of business on defendant’s railroad at other places, which prevented defendant from supplying cars at different stations necessary to meet the emergency — an emergency which could not be foreseen in time to prepare for it; that defendant made a just distribution of cars at Terry with reference to its duty as a common carrier to all its patrons. It is also averred an extraordinary freshet rendered it impossible for a considerable period to supply cars at Terry or elsewhere on the line of defendant’s railway or to haul shipments for plaintiff. The new matter in the answer was put in issue by a reply denying the averments.

It is enough to say of the testimony in this case that it proved plaintiff needed four cars a day, which were not furnished as demanded during the period mentioned, and he suffered loss in consequence; further, that he demanded cars frequently and the agent sometimes promised to furnish them but did not, and at other times said they could not be obtained. For defendant the evidence tended to prove there was a great and unexpected increase of transportation business over the country generally during the months in question, and many railroad companies fell behind fifty to sixty per cent in supplying their patrons with shipping facilities, defendant among others; car manufacturing companies were behind with their orders and railway companies could not obtain more cars to handle the accession of business; the officers of this company who were charged with looking after the matter, distributed as rapidly and equitably as possible, cars to the different stations along its lines, including the line over which plaintiff shipped and to the different patrons at each station; they had 150 flat cars on the line to use for the carriage of logs in the district where plaintiff shipped and 175 coal cars were used for hauling logs out whenever they hauled coal into the district; in making this distribution plaintiff was treated like other shippers and his due proportion of cars of the kind he needed was allotted and furnished Mm as promptly as possible; as lumber was high in price, there was an enormous increase in the demand for cars to carry timber; there was a “car famine” in 1907. Another witness said there were 127 stations from which defendant took out logs in the Terry district and from forty to forty-five cars to distribute daily thereon. On this issue of' fact the testimony for plaintiff went to prove there had been a deficiency of cars at the station of Terry for two or three years anterior to the summer and fall of 1907, and plaintiff and others engaged in the same business had been unable often during that period, to procure cars when they needed them. Some .of the testimony for plaintiff went to prove there was a better supply of cars during the summer and fall of 1907 than for some time before, though the supply always had been inadequate. The effect of this evidence, if believed, was to show the deficiency of cars was not due to an extraordinary accession of business, but because defendant failed to keep on hand enough cars to supply the ordinary demands of shippers. The verdict was in plaintiff’s favor for $507.96, and defendant appealed.

Defendant filed a motion to compel plaintiff to make his petition more specific, saying the petition averred plaintiff had placed for shipment at Terry, during the months mentioned, 120,000 oak and 60,000 cypress logs, but had failed to state what quantities of logs he had placed at said station for shipment on different dates, where the same were to be shipped, the character of the cars required for them, the market price of the timber for which cars were required, either at the point of shipment or point of destination, when he made application for cars, or how many he desired for each shipment; all of which particulars defendant alleged should have been given and the court was prayed to require plaintiff to give them. This' motion was overruled and .an exception saved. The other points raised on appeal are that the court erred in not sustaining a demurrer to the case made by plaintiff, in receiving testimony from tbe witnesses for plaintiff tending to prove there was no unusual shortage of timber cars on defendant’s line of railroad at the station of Terry and other stations in the vicinity, during the months mentioned, but there had been an inadequate supply of cars for two or three years before; erred also in disregarding the testimony of the witnesses for defendant, and all competent testimony, which went to prove the cause of plaintiff’s not being supplied with cars as he needed them, was the unusual and great increase of business on defendant’s railroad and the lines of other companies in 1907.

The petition was specific enough as to the quantity of logs, their value and the two hinds offered for shipment by plaintiff during the four months from July to October, 1907, inclusive. It also alleged that on numerous occasions plaintiff asked for cars but failed to get them, and defendant failed to furnish plaintiff cars in which to ship the logs mentioned or any of them, and in consequence they (the logs) became damaged and decreased in value, as the market meanwhile declined. The effect of those allegations was to state a case for not furnishing cars to haul any of the logs during the months named, and this was “a plain and concise statement of the facts constituting a cause of action.” [R. S. 1899, sec. 592.]

The motion for a more definite petition asked to have one fact given which the petition already gave, i. e., the place to which the logs were to be shipped. In the petition nothing was said about the logs being delivered for separate shipments on different dates, but the motion took this for granted in asking that plaintiff be required to set forth the quantity he had on hand “for each particular shipment and the dates thereof.” The court could not know the logs were tendered on various days for separate shipments; hence said part of the motion was bound to be overruled. In the petition it is averred plaintiff “frequently and on numerous occasions made demand of defendant and on its duly authorized agents for cars on which to load and ship said logs, and defendant promised to furnish them but did not do so,” etc. It is to be observed that, read in connection with the preceding portion of the petition,, the natural meaning of the averment of frequent demands, is that demands were preferred frequently for cars to haul all the timber previously alleged to have been “placed for shipment over defendant’s railroad,” and not for cars for separate shipments; though in point of fact demands were made at different dates for so many cars to haul so much timber then at the station ready to be shipped; for logs accumulated in quantity during the four months and plaintiff testified he asked for cars every day. But it is certain the petition does not either expressly or inferentiálly so say and instead states the facts in the way we have said. With the petition in that form, the court could not assume, against its averments, that plaintiff asked for allotments of cars on different days to haul whatever logs were on hand when the request was made. • The value of the two species of logs when ready to ship and a depreciation in value during the period they lay at Terry for lack of cars, were alleged. These allegations were definite enough to enable defendant to prepare its defense so far’ as the measure' of damages was involved, and it had nc right to call on plaintiff to allege the market prices, either at Terry or the intended destination of the timber. Defendant would be presumed to know what kind of cars were needed to haul the logs; its business as a common carrier required it to be informed about such matters. Therefore it was not incumbent on plaintiff to designate in his petition “the character of cars required to ship the same” (the logs). The. only request in the motion which is worthy of attention as being for information which it was defendant’s right to receive in order to meet the gravamen of the case related to tbe dates on which he made applications for cars. What we have said already disposes of this point. If it had appeared on the face of the petition the frequent requests were for allotments of cars to carry different deliveries of logs, perhaps the point would have been well taken. But the import of the petition being to the contrary, the proper method of raising the objection in hand, if it is sound, as to which we do not decide, was by objecting to evidence on the ground several causes of action were united in the petition, but not separately stated so as to be distinguished. [1 Mo. Ann. Stat., sec. 593 and notes.] We may say the result showed defendant’s rights were not prejudiced by omitting this information from the petition, because the evidence introduced in defense was general inability to furnish cars as promptly as needed during the months in question, and not ability to do so at times and inability at others. It is likely the motion was waived by answering and going to trial, but we have preferred to treat it at large in view of the state of the decisions of the Supreme Court on the point. [Shohoney v. Railroad, 122 S. W. 1025.]

Taking up the appeal on the merits, we hold it would have been a good defense if an extraordinary increase of business on defendant’s line, which could not have been anticipated and provided for by using judgment and diligence, had prevented defendant from furnishing the cars. Railroad companies are expected to be prepared with an equipment necessary to handle the average traffic over their lines and such an increase as would be expected by managers of experience, for the volume of traffic will vary with the seasons and general business conditions. These contingencies ought to be provided for and the law requires them to be; but a railroad carrier need not be ready to handle any accession of business, however great, which some unforeseeable condition may cause; and in case an extraordinary traffic occurs and consequent congestion of freight, the carrier must distribute its cars at the various stations in proportion to their needs. [Dawson v. Railroad, 79 Mo. 296.] The court granted all the declarations of law requested by defendant in which this limitation on its obligation to serve the public was recognized, yet found the facts against it; and the court might do this as trier of the facts. The evidence was contradictory as to whether fewer than usual of timber cars were furnished shippers in the third district of defendant’s system; the district where plaintiff shipped. If the testimony of the witnesses for plaintiff was believed, the shortage had been continuous over several years and was not greater in the summer and fall of 1907 than it had been before; perhaps was less.. Moreover, though defendant’s trainmaster said there was a “car famine” all over the United States during those months, and particularly a shortage of timber cars on account of the extraordinary demand for lumber and the high price it brought, he left room to believe defendant’s supply of that kind of cars was inadequate for the ordinary business of its patrons, as he said there were 127 stations from which lumber and timber were shipped and the company had forty-seven cars, suitable for hauling that kind of material, for daily distribution to those stations.

Defendant contends the witnesses who testified for plaintiff regarding the car shortage in the third district were not competent. Though they were not railroad experts, they were shippers of timber and, presumably, apprised concerning the fact they stated, namely, that there was a deficiency in timber cars for several years prior to 1907, equal to the deficiency that year. This téstimony inclined to overcome the defense of an unusual volume of traffic which could not have been foreseen, and to prove a scarcity of cars had existed so long defendant could and should have corrected it.

The point is urged that as plaintiff knew in July the company could not furnish, cars, but nevertheless continued to haul logs to the station for shipment when aware they would depreciate in value while lying there, he induced his loss. Granting there is truth in this contention, as it is not contended plaintiff knew from the first he could not ship, his conduct was cause, not for denying any redress, but only denying it to the extent he increased the damage by accumulating logs after he knew cars would not be available. No declaration* of law drawn on that hypothesis was requested.

The judgment is affirmed.

All concur.