Ross v. St. Louis Iron Mountain & Southern Railway Co.

170 S.W. 920, 185 Mo. App. 154, 1914 Mo. App. LEXIS 697

• Court: Missouri Court of Appeals
• Decided: November 27, 1914
• Status: Published

Opinions

OPINION.

■ FARRINGTON, J.

Appellant’s assignments of error go to the action of the court in refusing to give an instruction in the nature of a demurrer to the evidence, and in admitting evidence objected to, and in giving an instruction touching the same question as that raised in the objections to evidence. We shall consider these in the order stated.

The action being commenced in a justice’s court," the pleadings were not as carefully drawn as is usually found in the circuit court. There is, however, a sufficient statement to charge the defendant as a bailee of goods. Much space in appellant’s'brief is given to the contention that the instruments and medicine contained in the grip were not ordinary baggage such as is contemplated by section 3226, Revised Statutes 1909, and that the appellant canno.t be held liable for the loss of the articles in plaintiff’s grip as “baggage.” Without going into this question, it may be said that if such articles can be classed as “baggage,” defendant would be held liable for those negligently lost or damaged while in its keeping. If such articles are not “baggage,” the defendant did accept the grip and undertook to transport it to Crane, Mo., and a sufficient showing is made to at least charge the defendant with the common law liability of a bailee. The plaintiff proved that when he delivered the grip to defendant it was in good condition and when he received it about sixty days later some of the articles were gone and some damaged. This is sufficient to make out a prima-facie case of negligence against a bailee. If it was not baggage for which the defendant company received compensation to carry, the defendant was a gratuitous bailee. [6 Cyc. 663.] Besides, the loss of only $3.50 was no greater than could be contemplated by the parties from the loss of all ordinary baggage. The plaintiff further shows that he went to Berryville, Ark., in search of his property at an expense of $10; and as the articles in the grip were worth $26.50, plaintiff is entiled to recover this item of expense. [6 Cyc. 677.]

As to the admissibility of the evidence and the propriety of the instructions on the damage occasioned to the doctor in the loss of fees by reason of his not having his instruments: Plaintiff’s own testimony as presented to us clearly establishes the error complained of. He and his witness who was at the time of the shipment the agent of the defendant company, testified that neither the company nor the agent knew the contents of the grip. The defendant had no knowledge of the use to which the articles in the grip were to be put. The law is now well settled that in the absence of special contract the carrier cannot be held liable for damage which was not in. the contemplation of the parties. The rule is well stated in the case of Fitch v. Telegraph Co., 150 Mo. App. l. c. 159, 130 S. W. 44, as follows: “It is the established law that when the form of the remedy adopted proceeds as for a breach of contract, the party may recover only such damages as may fairly and reasonably be considered either as arising naturally according to' the usual course of things from a breach of the contract itself or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. This is the rule of Hadley v. Baxendale, 9 Exch. 341, and it applies as well to suits counting on the breach of contract to transmit a telegraph message as to any other. Indeed, such is the accepted doctrine throughout the éouñtry when the contract and not the tort is counted upon for damages. [See the following cases in point: Melso v. W. U. Tel. Co., 72 Mo. 111; Abeles v. W. U. Tel. Co., 37 Mo. App. 554; Hughes v. W. U. Tel. Co., 79 Mo. App. 133; Primrose v. W. U. Tel. Co., 154 U. S. 1; Jones on Telegraph Companies, secs. 516, 517.] ” A like principle runs through the law of torts, which is that a wrongdoer can be made to respond in compensatory damages for only such injury as can be reasonably and naturally anticipated to flow from the act done. It follows that the court erred in admitting the evidence complained of and in submitting the issue raised thereby to the jury.

The judgment is accordingly affirmed on condition that respondent within ten days -from the date of the filing of this opinion file with the clerk of this court á written remittitur of all the judgment except $13.50 with interest from the date of the rendition of the judgment in the circuit court; otherwise, the judgment will be reversed and the cause remanded for a new trial.

Robertson, P. J.,-and Sturgis, J., concur.