DeLisle v. St. Louis & San Francisco Railroad

Missouri Court of Appeals

DeLisle v. St. Louis & San Francisco Railroad

129 S.W. 252, 149 Mo. App. 8, 1910 Mo. App. LEXIS 866

DecidedMay 31, 1910

StatusPublished

This text of 129 S.W. 252 (DeLisle v. St. Louis & San Francisco Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DeLisle v. St. Louis & San Francisco Railroad, 129 S.W. 252, 149 Mo. App. 8, 1910 Mo. App. LEXIS 866 (Mo. Ct. App. 1910).

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Opinion

REYNOLDS, P. J.

The plaintiff instituted his action in the circuit court of New Madrid county against the defendant for damages alleged to have been sustained by him in consequence of the defendant’s failure to supply cars it had contracted to do in which to ship his cattle and that by reason of the delay in the supply of cars and in the shipment of the cattle, the cattle lost in weight and did not reach the market for sale at the time they should have done, had the defendant supplied the cars as contracted and agreed; that the market fell off and that plaintiff had suffered damages thereby, plaintiff laying his damages at $295. The answer was a general denial. The trial was before a court without a jury, a jury having been waived. At the request of defendant the court made a special finding of facts, which, in effect, after finding that the defendant was a corporation operating a railroad in this State from Portageville, Missouri, to East St. Louis, Illinois, and a common carrier of passengers and goods, finds that on a day in April, 1906, the plaintiff ordered from the defendant two cars for the shipment of cattle from Portageville to East St. Louis, and that the defendant through its agent at Portageville agreed with plaintiff to have cars there on a day named; that on that day plaintiff delivered at the defendant’s stock pen for shipment from Portageville to East St. Louis, fifty-five head of cattle, but that the defendant failed and neglected to supply the cars agreed on the date agreed and that plaintiff’s cattle were kept in the stock pen “more than -- [11]*11hours before the car was furnished by defendant and they were loaded, and after being in the cars at Portageville they were permitted to remain in the car on the track at Portageville for-hours;” that after being loaded they were delayed in transit from twenty-four to thirty hours more than was necessary through the negligence and carelessness of the defendant, and that by reason of the failure of the defendant to supply the cars at the time agreed upon and by reason of the unusual length of time the cattle were upon the road they lost in weight and that in consequence of the delay in the delivery of the cattle they had fallen off in market value thirty cents per hundred pounds. The court found for the plaintiff in the sum of $190.41. Judgment followed. •Defendant in due time filed exceptions to the special finding of fact and a motion for a new trial, both of which were overruled, exception saved and appeal duly perfected by defendant to this court.

It is urged by the defendant that on account of the condition of the track at the north end, it was unable to receive the shipment until it could transport it, claiming that it did this and so advised plaintiff, who acquiesced. Second, that plaintiff never delivered the stock for shipment until the day they were forwarded. Third, that the petition is indefinite as to what plaintiff seeks to recover upon. From the abstract furnished in the case by the appellant and the brief of its counsel, there being no opposing brief, we gather that the testimony was conflicting as to the fact concerning the first and second errors assigned. That being so, the conclusion of the trial court on the facts is binding upon us, there being substantial evidence to support it.

As to the third proposition that the petition is indefinite, it is to be noted that no objection or motion was made to it on that account, and no exceptions are called to our attention in the statement and brief filed by the appellant’s counsel to the admission of testimony. The only exceptions, saved, as shown by this statement, [12]*12are exceptions to the findings of the court and to the overruling of the motion for a new trial. The case was tried throughout on the theory that damage had been sustained through the shrinkage in the weight of the cattle in consequence of the delay in furnishing the cars and consequent delay in arrival at the market for which they were destined; and that the market had in the meantime fallen off, plaintiff testifying that it had fallen off 35 cents per hundred pounds. These were proper facts to be considered in estimating the damages sustained. [Glascock v. C. & A. R. R. Co., 69 Mo. 589.] The court put this loss at thirty cents, and allowed for a shrinkage of one hundred pounds in weight on each head. Estimating the damage on these two elements, it allowed plaintiff $190.41. We see no error tcc the prejudice of the defendant at the trial or in the result.

The judgment is affirmed.

All concur.

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REYNOLDS, P. J.

The plaintiff instituted his action in the circuit court of New Madrid county against the defendant for damages alleged to have been sustained by him in consequence of the defendant’s failure to supply cars it had contracted to do in which to ship his cattle and that by reason of the delay in the supply of cars and in the shipment of the cattle, the cattle lost in weight and did not reach the market for sale at the time they should have done, had the defendant supplied the cars as contracted and agreed; that the market fell off and that plaintiff had suffered damages thereby, plaintiff laying his damages at $295. The answer was a general denial. The trial was before a court without a jury, a jury having been waived. At the request of defendant the court made a special finding of facts, which, in effect, after finding that the defendant was a corporation operating a railroad in this State from Portageville, Missouri, to East St. Louis, Illinois, and a common carrier of passengers and goods, finds that on a day in April, 1906, the plaintiff ordered from the defendant two cars for the shipment of cattle from Portageville to East St. Louis, and that the defendant through its agent at Portageville agreed with plaintiff to have cars there on a day named; that on that day plaintiff delivered at the defendant’s stock pen for shipment from Portageville to East St. Louis, fifty-five head of cattle, but that the defendant failed and neglected to supply the cars agreed on the date agreed and that plaintiff’s cattle were kept in the stock pen “more than -- [11]*11hours before the car was furnished by defendant and they were loaded, and after being in the cars at Portageville they were permitted to remain in the car on the track at Portageville for-hours;” that after being loaded they were delayed in transit from twenty-four to thirty hours more than was necessary through the negligence and carelessness of the defendant, and that by reason of the failure of the defendant to supply the cars at the time agreed upon and by reason of the unusual length of time the cattle were upon the road they lost in weight and that in consequence of the delay in the delivery of the cattle they had fallen off in market value thirty cents per hundred pounds. The court found for the plaintiff in the sum of $190.41. Judgment followed. •Defendant in due time filed exceptions to the special finding of fact and a motion for a new trial, both of which were overruled, exception saved and appeal duly perfected by defendant to this court.

It is urged by the defendant that on account of the condition of the track at the north end, it was unable to receive the shipment until it could transport it, claiming that it did this and so advised plaintiff, who acquiesced. Second, that plaintiff never delivered the stock for shipment until the day they were forwarded. Third, that the petition is indefinite as to what plaintiff seeks to recover upon. From the abstract furnished in the case by the appellant and the brief of its counsel, there being no opposing brief, we gather that the testimony was conflicting as to the fact concerning the first and second errors assigned. That being so, the conclusion of the trial court on the facts is binding upon us, there being substantial evidence to support it.

As to the third proposition that the petition is indefinite, it is to be noted that no objection or motion was made to it on that account, and no exceptions are called to our attention in the statement and brief filed by the appellant’s counsel to the admission of testimony. The only exceptions, saved, as shown by this statement, [12]*12are exceptions to the findings of the court and to the overruling of the motion for a new trial. The case was tried throughout on the theory that damage had been sustained through the shrinkage in the weight of the cattle in consequence of the delay in furnishing the cars and consequent delay in arrival at the market for which they were destined; and that the market had in the meantime fallen off, plaintiff testifying that it had fallen off 35 cents per hundred pounds. These were proper facts to be considered in estimating the damages sustained. [Glascock v. C. & A. R. R. Co., 69 Mo. 589.] The court put this loss at thirty cents, and allowed for a shrinkage of one hundred pounds in weight on each head. Estimating the damage on these two elements, it allowed plaintiff $190.41. We see no error tcc the prejudice of the defendant at the trial or in the result.

The judgment is affirmed.

All concur.

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129 S.W. 252, 149 Mo. App. 8, 1910 Mo. App. LEXIS 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delisle-v-st-louis-san-francisco-railroad-moctapp-1910.

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