28 Mo. App. 103 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This suit was instituted before a justice of the peace on the following statement.
“ St. Louis & San Francisco Railroad Company,
“To Theo. J. Witting (formerly Reichenbach), Dr.
“ To damages in negligently breaking soda apparatus shipped May 2, 1884, from Oswego, Kansas, to St. Louis, Missouri____$200.00”
It is conceded that there was not sufficient service of summons upon the defendant company, and that the company did not appear and defend before the justice, but suffered judgment by default. From this judgment the company appealed to the circuit court, and there moved to dismiss the action on the ground that the justice had not acquired jurisdiction of the person of the defendant, and consequently the circuit court had none. This motion was overruled, and the parties went to trial, which resulted in a verdict and judgment for the plaintiff for two hundred dollars.
The first error assigned by the defendant is, that the court erred in overruling his motion to dismiss. The Supreme Court has repeatedly decided that an appeal taken by a defendant dispenses with the necessity of showing a sufficient service of summons before the justice (Gant v. Railroad, 79 Mo. 502; Fitterling v. Railroad, 79 Mo. 504); and we have had occasion, at the present term, to follow that ruling in the case of Eubank v. Pope (27 Mo. App. 463). The cases cited by the appellant to the contrary have no application because they relate to garnishment proceedings, which depend for their validity upon the question whether the justice acquired jurisdiction of the debt to be condemned, it being well settled that consent, or the voluntary appearance of the defendant garnishee, can not confer jurisdiction. Masterson v. Railroad, 20
Nor is there any merit in the appellant’s second objection that the statement filed fails to state a cause of action, and that the court erred in receiving evidence to substantiate it. The statement filed is sufficiently specific to advise the defendant of the nature of the plaintiff’s claim, and sufficiently certain to bar another action for the same cause. That is the proper test. Statements have been held insufficient which did neither of these, as “Nicholson; debtor to Marion Swartz, fourteen dollars” (Swartz v. Nicholson 65 Mo. 508); or the “plaintiff states that the defendant is indebted to Mm in the sum of fifty dollars, lawful currency, for which he asks judgment.” Butts v. Phelps, 79 Mo. 303. But our attention has not been called to any case wherein a statement filed before a justice of the peace did comply with the two requirements above stated, and was held insufficient, unless it omitted to state jurisdictional facts.
This brings us to the substantial complaint of the appellant, that the rulings of the court upon the evidence, and its instructions to the jury, were erroneous.
The plaintiff testified, in substance, that the soda fountain in controversy was made entirely of marble; that he acquired it in trade from one Kingsbury, in Oswego, and had instructed the latter to ship it to Mm ; that the fountain was received at the defendant’s freight depot in St. Louis, by the plaintiff’s brother; that when the fountain reached the plaintiff’s place of business one side of the crate was broken, one of the braces was broken in two, and the others were drawn out of place, and the apparatus was broken on the inside of the crate; that the crate which inclosed the apparatus was made of part of the crate in which the fountain had formerly been shipped to Oswego; that the fountain had been placed in the center of the crate with inside braces on each, side, and at the top, to keep it in place; that one of these inside braces was broken and the others thrown
The plaintiff’s brother testified that he received the fountain at the St. Louis depot; that two of the boards of the crate were broken at the time, and that he transported it with care from the depot to his brother’s store. This, and proof that the fountain was received for transportation by the defendant at Oswego, constituted the plaintiff’s case.
The defendant gave evidence showing that the fountain was shipped at Oswego by Kingsbury uuder a bill of lading containing “ exceptions as to the dangers incident to railroad transportation and unavoidable accidents,” and subject to the condition that “marbles shipped were at owner’s risk of breakage.” Kingsbury, the shipper, testified that the fountain was an old one, and the marbles fastened with screws run through the outside slab into screw-holes which were in the inner slab; that holes were drilled in the marble, these holes filled with metal, and threads for the screws cut in the metal; that the fountain being old the screw-holes were worn too large for the screws, and that he had frequently plugged the holes with wood so that the screws would not slip out, but he did not remember whether he plugged these holes just before he shipped the fountain; that the fountain was packed like a sewing machine in a crate; that it was very heavy ; that it had to be tipped to get it into the dray ; that he did not see the fountain after it left his place, and could not say what its condition was when delivered to the defendant.
The defendant also'gave in evidence the depositions of the trainmen who handled the car in which the fountain was shipped, from the time it left Oswego until it
At the close of the entire case the defendant requested the court to instruct the jury that the plaintiff could not recover. This instruction the court refused, and properly so. We have fully stated our reasons for so holding, in Heil v. Railroad Company (16 Mo. App. 363), and will restate them briefly here. That the carrier may, by special contract, except certain risks and perils to which goods are subject in course of transportation is conceded, yet, when sued on his liability at common law, a sufficient case is made out against him by showing his failure to deliver goods in such condition as they were delivered to him. He occupies the position of an insurer against all risks, with certain exceptions, and it is for him to show that the injury was due to a cause falling within such exceptions. He was sued upon such liability in this instance.
If the defendant carrier claims that the goods were shipped under a special contract, excepting other risks and perils than those excepted at common law, it is for him to establish the contract and show that the risk or loss was excepted by such contract. We can not see how the court can non-suit a plaintiff after he has made a prima-facie case, as long as the burden of proof on any part of the case rests with the defendant.
The law that is applicable to this class of cases is-clearly stated by Judge Wagner, in Read v. Railroad (60.
It is claimed that this language was a mere obiter dictum, and was unnecessary to the decision of the case, and is at war with the result arrived at. This, however, is a mistaken view. The judgment, which was for the plaintiff, was affirmed because it appeared by the.defendant’s answer and by the evidence, that the loss was caused, not by the act of God, but by the carrier’s negligent delay. The judgment was affirmed upon a review of the whole record, as the. defendant, under the facts of the case, could not have been prejudiced by the erroneous instructions of the trial court as to the burden of proof.
The language used by Judge Wagner in the above case is not substantially different from that used by Mr. Justice Miller, in Railroad v. Reeves (10 Wall. 189). and the language thus used is approved as a correct exposition of the law in the recent case of Davis v. Railroad (89 Mo. 354), where the point was directly involved in the decision of the court. In that case the defendant claimed that the loss was caused by an act of
“The court further instructs the jury that if the evidence shows that the injury to the plaintiff’s goods Avas caused by a sudden, violent, and extraordinary flood at the city of Toledo, whilst the goods of the plaintiff Avere in the cars at the transfer-house at Toledo, the verdict of the jury must be for the defendant, unless the plaintiffs have shown that the defendants were guilty of some specified negligence with reference to the goods, which actually cooperated with the act of God to produce the injury.”
This instruction the court refused to give, and its refusal was one of the reasons assigned by the Supreme Court for the reversal of the judgment, which, in the court below, was in the plaintiff’s favor.
There can not, on principle, be any distinction between cases where the peril is one excepted at common law and those where the peril is excepted by contract between the parties. We are aware of no case Avhere such distinction was attempted. In Farnham v. Railroad (55 Pa. St. 53) the peril excepted was loss by fire. In American Express Co. v. Perkins (42 Ill. 461) a loss by breakage. In Dorr v. Navigation Co. (11 N. Y. 480) a loss by fire. In Nelson v. Railroad (48 N. Y. 498) a loss by breakage, and in Kiff v. Railroad (32 Kan. 263) a loss by breakage and fire, the goods being shipped at owner’s risk. In all these cases it is held that the onus of proving negligence is upon the plaintiff, and in none that he has acquitted himself of that burden by proof that the goods were delivered to the carrier in a sound condition, and delivered by him in an injured condition. On the contrary, in several of these cases the judgment in favor of the plaintiff was reversed because he failed to show specific acts of negligence on the part of the carrier.
We may, therefore, assume as established beyond controversy, both in this state and elsewhere, that, where-
In the case at bar there was sufficient evidence of a special contract to establish it. That special contract exempted the carrier from liability if the loss consisted in the breakage of marbles, and was occasioned by the ordinary dangers incident to railroad transportation, such as the jolting, jostling, or surging, of cars. If the contract was established the burden of showing that the breakage was not the result "of these common dangers, but the result of the carrier’s negligence, was upon the plaintiff.
This being the unquestioned law, the court, among-other things, instructed the jury as follows :
“The court- instructs the jury that if they believe from the evidence that the soda apparatus in question was, when taken possession of by the defendant for the purpose of carrying the same from Oswego to St. Louis, in good order, that is to say not broken, and it was properly packed for such shipment, and that the same was delivered in St. Louis in an injured and broken condition, then the law presumes that such damage and injury was occasioned through the fault of the defendant, provided, also, that the jury believe and find that, by the exercise of ordinary care on the part of the defendant’s employes handling its trains and handling the said soda apparatus, the same could be carried and delivered to the consignee-in the same condition it was when the defendant received it,”
That this instruction, under the evidence, was highly prejudicial to the defendant, must be conceded. It made the happening of the accident prima-facie evidence of the defendant’s liability, although the accident
That the jury were misled by this instruction very plainly appears by their answer to one of the interrogatories propounded to them. When asked to state specifically in what the negligence of the defendant consisted, provided they found such negligence, they answer: “We believe it [the fountain] was received in good order and delivered in bad order.” Thus clearly showing that, under the instruction of the court, the jury felt authorized to find negligence from that fact alone.
We may safely admit that the articles shipped may be of such a shape, or that the breakage may be of such a character, that, from the physical facts of the case alone, an almost irresistible inference of negligence may arise, sufficient, at least, to shift the burden of proof again on the carrier, but even in that case the inference is one of fact, and not of law. Under the evidence, as hereinabove detailed, the breakage, as a question of fact, might have been caused either by the carrier’s negligence or by the ordinary dangers of transportation, and yet the court tells the jury, in substance, that the law presumes that it was caused by the carrier’s negligence.
We do not claim that there is a difference in this regard between a carrier acting under a special contract limiting his liability and any other bailee. They stand precisely on the same footing. Where any other bailee agrees to return property in as good condition as re
Some difficulty arises in this class of cases owing to some of the earlier dicta and decisions of the Supreme Court and this court, in Levering v. Transit Company (42 Mo. 88); Ketchum v. Express Company (52 Mo. 390); and Drew v. Transit Company (3 Mo. App. 495). Whether these dicta and decisions can be reconciled with the later express decisions of both courts in Davis v. Railroad (89 Mo. 354), and Harvey v. Railroad (6 Mo. App. 585), it is needless to discuss, because if they can not be, they must yield to the latest authoritative decisions announcing the law of the state, and harmonizing it with the decisions in other jurisdictions.
We may add that there- is nothing in the instructions given by the court of its own motion which remedies this error. These instructions were irreconcilable with the instructions given for the plaintiff, if their proper construction is as claimed by the plaintiff’s counsel, because the burden of proof as to the same fact could not lie, in the very nature of things, with both parties. If the mere receipt of the marbles in good order, properly packed, to the carrier, and their nondelivery by him to the consignee in like good order, is presumptive evidence of negligence on the part of the carrier, then he stands as at common law, and gets no benefit from his special contract, which, in case of breakage, an excepted risk shifts the burden of proof.
The court committed no error in excluding evidence as to the meaning of certain phrases in the contract. There is nothing ambiguous in the language of the contract, and its interpretation was a matter of law for the court. But as the court clearly erred in its instruction to the jury given on the plaintiff’s behalf, and as such error was unquestionably prejudicial to the defendant,
In the vie,w herein expressed, Judge Lewis concurs. Judge Thompson is of opinion that the decision is opposed to a previous decision of the Supreme Court. It is, therefore, ordered that the clerk certify the cause and the original transcript, herein to the Supreme Court for its final determination, and that all proceedings on the judgment of, this court be stayed until the final disposition of the cause by the Supreme Court.