Foust v. Lee

119 S.W. 505, 138 Mo. App. 722, 1909 Mo. App. LEXIS 424

Opinion

NORTONI, J.

This is a suit on the common law-liability of the defendants, common carriers, for the value of a horse alleged to have been lost to the plaintiff during its transportation. Plaintiff recovered and defendants appeal.

Defendants are partners owning and operating a line of steamboats known as the Lee Line which ply the Mississippi river between the city of St. Louis, Missouri, and Memphis, Tennessee, and prosecute the calling of common carriers for hire. Plaintiff shipped two-horses on defendants’ boat, Reese Lee, from the city of St. Louis, to Gayoso, in Pemiscot county, Missouri.. One of the horses was delivered at destination in good condition, and the other was removed from the boat', with the thigh bone of a hind leg broken and in a dying-condition. The horse was without value after its injury and died therefrom within a day or two after landing. The evidence on the part of plaintiff tended to prove that the horse was injured in some manner on the boat prior to reaching Gayoso. No witnesses for them gave testimony, however, as to how it was injured. On the part of defendants, the master of the boat testified that the horse reached Gayoso in good order; that after the freight had been removed from the boat and while several colored men Avere in the act of leading the horses from the boat to the landing, one of the plaintiff’s horses became excited, backed up and kicked the horse in the rear on the leg which resulted in breaking the leg mentioned, and the consequent loss of the horse. The defense relied upon in the trial court and presented1 here for consideration arises from this testimony, and is to the effect that the plaintiff’s horse having received its injury from the vicious propensities of its companion, also owned by the plaintiff, the finding and judgment should be for the defendants. Before considering this matter, however, we will examine defendant’s first assignment of error.

This assignment relates to the sufficiency of the testimony tending to show that the horses were received by the defendants, common carriers, in good condition at St. Louis. It is argued that in no event could the plaintiff recover on the presumption, or at least slight showing, of negligence to be hereinafter adverted to, unless it appears that the horse was in good condition at the time it was received by the defendants for transportation. Of course, when considering this argument with reference to the particular facts in judgment, it relates only to the horse being in good condition with respect to the leg which was broken and entailed the loss. There was no bill of lading introduced in evidence nor other receipt for the property. If one was given, it does not appear in the case. The verdict is therefore unaided by any recital which might have been contained therein, as appears in some cases to the effect that the property was received in good order. There appears to have been no witnesses for the plaintiff who testified to having seen the horse loaded on the boat or as to its condition when received. Plaintiff did prove, however, by one witness that he had seen the horse daily or as many as eight or nine times possibly, during the week previous to the shipment, and that he was in first-class condition in every respect during all that time. This witness also testified that he accompanied the horse to the boat landing the evening before it was shipped and that it was then in good condition. When we consider this testimony, together with the inferences which arise from the fact that the defendant received the horse upon its boat for transportation, we entertain no doubt as to its being sufficient to constitute a prima facie showing in that behalf. Especially is this true when nothing intervenes tending to show the horse was not in good condition between the time the witness accompanied it to the landing the night before and the time it was received upon the boat. Then, too, when we consider the nature of the injury and the mode and manner essentially pursued in loading the horse with a thigh hone of a hind leg broken, from the landing, upon the steamboat, a strong inference arises to the effect that the leg was not broken at that time. In view of the fact that in such a condition the horse -would have been almost, if not quite, unable to walk upon the boat, it may reasonably be inferred that the leg was not broken when defendants received the horse for shipment. However all of this may be, the defendants did not stand upon its demurrer to the testimony. It proceeded instead, to introduce evidence in its own behalf. While by introducing testimony in its own behalf it did not necessarily waive the demurrer theretofore interposed, the defendants nevertheless assumed the risk of aiding possible insufficiencies in the plaintiff’s case by showing such material facts on its part as plaintiff may have omitted. Therefore the question must be determined with reference to the facts appearing at the conclusion of the whole case. [Eswin v. St. L., I. M. & S. Ry. Co., 96 Mo. 290; Storck v. Mesker, 55 Mo. App. 26; Klockenbrink v. St. L. & M. Ry. Co., 172 Mo. 678.] Defendants’ witness, the master of the boat, gave testimony to the effect that the horse was ir good condition while en route and until it received the injury by being kicked from plaintiff’s other horse at Gayoso. Even if the testimony on the part of the plaintiff wras insufficient to show /the- animal was in good order at the time defendants received it for transportation, this feature of the case urns abundantly supplied by the defendants’ witness, and the assignment of error with respect thereto will be overruled.

The case urns tried before the circuit court without a jury. The court granted all of the declarations of law requested by defendants but nevertheless found the issues for the plaintiff. As stated, there was no affirmative proof on the part of plaintiff as to the manner in which the horse received its injury. Although defendants’ agent at Gayoso testified that it was in jured when the boat arrived at the landing in his charge, and it is to be inferred from, the testimony that the injury had been received a considerable time theretofore for the reason, he said the horse was then in a dying condition. The injured limb was much swollen, etc. The clerk of the boat stated that the horse was in a dying condition when the boat reached Gayoso. The clerk reported this fact to defendants’ agent immediately upon landing and before any of the cargo was removed. It appears the boat remained at the landing from thirty minutes to an hour unloading other freight before the horse was removed. The boat then moved about two hundred yards farther down the river and plaintiff’s horse was dragged therefrom npon the bank in his crippled condition. On the part of the defendants, the captain’s evidence is to the effect that the horse was in good condition upon arriving at Gayoso and received the kick from its companion while being led from the boat. It is very true that the obligation of a common carrier as insurer does not obtain with respect to the transportation of animals against injuries received by them from their natural and vicious propensities. And indeed, when one shipper is transporting several animals, he takes the risk as well of injuries which may be inflicted upon one animal by the inherent vicious propensities of the others. [L. M. O. & T. Ry. Co. v. Biger, 66 Miss. 319; Boehl v. Railroad, 44 Minn. 191, 46 N. W. 333; 1 Hutchinson on Carriers (3 Ed.), 336.] And there is no doubt, if it appears conclusively that the plaintiff’s horse Avas injured by the vicious propensities of its companion in kicking, the defendants should be acquitted of liability "therefor. It is true no witness positively disputed the captain’s statement with respect to this matter. Nevertheless if the horse received his injury in this manner, then he Avas sound and in good order Avhen the boat arrived at Gayoso an hour before and there is an abundance of evidence to the effect that the horse was injured some time during transit before tbe boat arrived at Gayoso and that be wag then in a dying condition. Now this question was for tbe court wbo tried tbe facts.' Tbe court granted to defendants’ declarations of law incorporating tbe principle which would exculpate them from liability on tbe theory of injury received by tbe proper vice of tbe companion horse, and evidently found tbe fact to be that the horse was injured in a manner otherwise than stated by tbe captain, or that it received its injury during tbe transit and before tbe boat arrived at Gayoso landing. But it is argued that no sufficient showing was made by tbe plaintiff’s proof to that effect. It is very true that in view of tbe exception as to tbe carrier’s liability with respect to tbe proper vice of tbe animal or its companion, tbe burden rests with tbe plaintiff to show prima facie tbe animal received its injuries through some cause other than its proper vice or tbe vicious propensities of tbe companion horse. However, very slight proof of negligence is sufficient in such cases. This, for tbe reason that tbe animal being in tbe possession of tbe carrier for transportation, it is difficult, and in many cases impossible, for the shipper to show precisely bow tbe injury was received. It is certainly not necessary to sho'w that tbe injury was inflicted through tbe carrier’s negligence or want of care, by express and positive testimony. Tbe cause of tbe injury may be established fróm collateral facts and circumstances affording a reasonable inference of negligence, identically as other facts may be established in a suit at law. [Libby v. St. L., I. M. & S., Ry. Co., 137 Mo. App. 276, 117 S. W. 659; Hance v. Pacific Express Co., 48 Mo. App. 179; Cash v. Wabash Ry. Co., 81 Mo. App. 109; Hance v. Pacific Express Co., 66 Mo. App. 486; 5 Am. and Eng. Ency. Law (2 Ed.), 469, 472.] Where tbe liability sought to be enforced is that at common law, a prima facie case of negligence or breach of duty in respect of tbe transportation of animals will arise from showing that tbe ani mal was wounded as by external violence during transit, and thus evince a physical condition which does not usually attend a carriage with due care and attention. From this showing a jury is authorized to infer and may find negligence. Authorities supporting the proposition are abundant. [Hussey v. The Sarargossa, 3 Woods (U. S.) 380; Libby v. St. L., I. M. & S. Ry., 137 Mo. App. 276, 117 S. W. 659; Cash v. Wabash Ry. Co., 81 Mo. App. 109; Hance v. Pacific Express Co., 48 Mo. App. 179; Hance v. Pacific Express Co., 66 Mo. App. 486; Lachner Bros. v. Adams Ex. Co., 72 Mo. App. 13, 19; 5 Am. and Eng. Ency. Law (2 Ed.), 469, 471.] For a case extending the doctrine to its limit, see Griffin v. Wabash R. Co., 115 Mo. App. 549.

There was an abundance of testimony on the part of plaintiff tending to prove that the' horse received its injury from external violence and was in a wounded and dying condition at the time the boat arrived at Gayoso. This feature of the case was wholly unexplained by the defendants. In fact, they introduced no evidence whatever to show how the horse received its injury prior to arriving at Gayoso. The testimony given on the part of the defendants goes exclusively to the effect that the horse was injured an hour after the boat landed. Hoav and when it was injured, was purely a question of fact for the court trying the case as a jury. [Lachner Bros. v. Adams Express Co., 72 Mo. App. 13, 19.] By instructions given at the request of defendants, the court afforded them the benefit of all pertinent principles of law heretofore discussed. No instructions were given for plaintiff.

The judgment Avas for the right party and should be affirmed. It is so ordered.

Reynolds, P. Jand Goode, J., concur.