Humphreys v. St. Louis & Hannibal Railway Co.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.

Defendant is a common carrier and as such maintains a station and stock pens at Troy, Missouri. Plaintiff delivered eighty-seven fat hogs to defendant in its stock pens, with a view of loading them on a car for shipment, and five of the hogs escaped through a defective fence. The hogs were lost and the suit proceeds for their value.

It appears that the fence of the stock pen was defective and had been so for several months. Some of the posts were rotted and the boards were insecurely nailed thereto. Because of this defective condition, it is said the five hogs escaped from the pen and were lost to plaintiff.

There can be no doubt that the law casts an obligation on a common carrier of live stock to exercise ordinary care to the end of maintaining its pens for the reception of stock in a reasonably safe condition, so as to prevent the injury or escape of the animals placed therein by a patron for shipment. [See Reading v. Chicago, B. & Q. R. Co., 165 Mo. App. 123 , 145 S. W. 1166 ; Lackland v. Chicago & A. R. Co., 101 Mo. App. 420 , 74 S. W. 505 ; Mason v. Mo. Pac. R. Co., 25 Mo. App. 473 ; Holland v. Chicago R. I. & P. R. Co., 163 Mo. App. 251 , 146 S. W. 1181 ; 1 Hutchinson on Carriers (3 Ed.) (M. & D.), sections 114, 115.]

But it is argued it should appear the carrier knew the hogs were delivered in the pen or otherwise the obligation in respect of them may not be invoked, and, no doubt, this is generally time. However, express notice to the carrier is not always essential. If a conventional arrangement otherwise appears, or if a practice *718 or custom, obtains between tbe carrier and its patron, so as to operate as an invitation on tbe part of tbe carrier to tbe shipper to deliver tbe stock in tbe pen for shipment, without express notice concerning tbe fact, this will suffice. [See 1 Hutchinson on Carriers (3 Ed.) (M. & D.), section 115.]

It is true there is no direct evidence tbat plaintiff notified defendant’s agent tbe bogs were in tbe pen in tbe early part of tbe day, though the evidence is, tbe agent issued a bill of lading covering tbe transportation of eigbty-two of tbe number to St. Louis, tbat evening. It appears tbat plaintiff was engaged in tbe business of buying and shipping stock and as sucb was a regular patron of defendant. He delivered hogs and cattle frequently to defendant in tbe identical pen at Troy, for shipment, and defendant accepted sucb shipments as tendered. On the day previous to tbe shipment involved here, plaintiff ordered a car from defendant’s agent at Troy to transport bogs to St. Louis, and this car was provided by defendant for tbat purpose on tbe day tbe bogs were placed in tbe pen.

Tbe evidence is, tbat tbe stock pen is near defendant’s depot, where tbe agent maintained bis office, and on its property. Several hours were consumed in receiving tbe bogs, weighing them and placing them in tbe pen. Having placed tbe bogs in tbe pen, plaintiff returned to bis home to await tbe arrival of tbe car, later in tbe day, into which they were to be loaded, and, during tbe time, five of them escaped. Plaintiff returned in tbe evening, loaded tbe remainder in tbe car — tbat is, eigbty-two bead of bogs, — and received a bill of lading from tbe agent. Though tbe evidence is meager, it was competent for tbe jury to find from these facts tbat defendant knew tbe bogs were placed in tbe pen for shipment. Certainly sucb may be inferred from what appears. Especially is this true in view of tbe fact tbat plaintiff frequently shipped bogs from tbat place and followed tbe usual course in order *719 ing the ear from the agent the day before. Obviously, defendant invited him to make the delivery, accordingly, and should be regarded, after verdict on these facts, as if it knew that he did so. This being true, defendant’s obligation with respect to the safety of the hogs attached immediately on the delivery in the pen, for such was accessory to the' carriage. [See Mason v. Mo. Pac. R. Co., 25 Mo. App. 473 .] This is true, too, though plaintiff was to call later in the day and load the hogs in the car, for, in the interim-, after delivery in the pen, under such circumstances, the obligation to protect against their escape obtained. [See Holland v. Chicago, R. I. & P. R. Co., 163 Mo. App. 251 , 146 S. W. 1181 .] The matter of plaintiff’s contributory negligence, because he knew the pen to be more or less defective, was likewise a question for the jury.

The petition avers that the stock pen had become defective through the carelessness of defendant, in that the posts and planks and nails used in the construction of the inclosure were suffered' by defendant to become so rotted, rusted, worn, wasted and weakened as to render them insufficient to protect against the escape of the hogs.

Plaintiff’s first instruction submitted the negligence relied upon and required a finding of the facts alleged concerning the same. But the third instruction given at his request is general in character and purports 'to cover the whole case, in that it authorizes a verdict for plaintiff on the finding of the matters therein recited. His third instruction is as follows:

“The court instructs the jury, that if it has been proven to your satisfaction by the evidence given in the case that the defendant railroad .was a common carrier for the purpose of carrying freight, especially hogs, from its stock pens near its railroad station in Troy, Missouri, to intermediate points on its railroad on the date alleged in its petition, to-wit, the 23rd day *720 of March, 1911, and that it did receive and transport this kind of freight for hire at and about that time, then it was the duty of said defendant to keep its stock yards or stock pens at Troy, . Missouri, in a reasonably safe and secure condition for the purposes intended; and now if you believe and find from the evidence, that on said date, to-wit, the 23rd day of March, 1911, that the plaintiff herein delivered to the defendant for shipment to St. Louis, Missouri, eighty-seven head of hogs and that the defendant received said hogs for shipment and put them or had them put or suffered them to be put in its stock pens for shipment over its road and while they were in said pens of defendant, the defendant failed to keep its pens in which they were in a safe and secure condition and by reason of its failure so to do, five of plaintiff’s hogs escaped from said pens and were lost to plaintiff, then the law is that the defendant must be responsible to the plaintiff for the value of said hogs so lost as shown by the evidence, provided your verdict, if you find for the plaintiff, shall not exceed $62.16 with interest thereon at six per cent from the date of the filing of this suit to-wit, the 2nd day of September, 1911. ’ ’

This instruction authorized a finding for plaintiff, without regard to the specific averments of negligence contained in the petition, on a mere finding that “the defendant failed to keep its pens in which they were in a safe and secure condition and by reason of its failure so to do five of plaintiff’s hogs escaped from said pens and were lost to plaintiff.” This is insufficient under the established rule of decision which obtains in the Supreme Court, for that such a general instruction is said to permit the jurors to evolve any theory of negligence they may imagine and cast liability against defendant on grounds other than those set forth in the petition. [See Davidson v. St. Louis Transit Co., 211 Mo. 320 , 109 S. W. 583 ; Beave v. St. Louis Transit Co., 212 Mo. 331 , 111 S. W. 52 .] We *721 condemned a similar instruction in a case of like character recently in Reading v. Chicago, B. & Q. R. Co., 165 Mo. App. 123 , 145 S. W. 1166 .

Although plaintiff’s first instruction is well enough, in that it submits the specific negligence relied upon in the petition, the third instruction above copied may not be treated as aided thereby. On this question the most recent ruling in the Supreme Court goes to the effect that where plaintiff’s instruction au: thorizing a verdict for him covers the whole case but omits a ground of negligence essential to his recovery, such may not be cured by another one of plaintiff’s instructions, which is amply sufficient with respect to the matter omitted. [See Hall v. Coal & Coke Co., 260 Mo. 351 , 168 S. W. 927 .] Furthermore, the instruction says “it was the duty of defendant to keep its stockyards in a reasonably safe condition” whereas the law requires it to exercise ordinary care to that end only.

The instruction above copied authorizes, too, the recovery of interest at six per cent on the value of the hogs lost from the date of filing the suit. It is argued this was error as declared in Reading v. Chicago, B. &. Q. R. Co., 188 Mo. App. 41 , 173 S. W. 451 , but we are not so persuaded. On reconsideration, we conclude that interest may be recovered in cases where the suit proceeds, as here, on the common-law liability of the common, carrier for the loss of property in its possession for transportation, if other elements of liability are present. Indeed, such seems to be the general rule on the subject as stated by Mr. Hutchinson in his work on Carriers. [See Vol. 3 (3 Ed.) (M. & D.), section 1360.] In such cases the author thus states the rule on the measure of damages:

“It is well settled that the measure of the damages for the loss of the goods by the carrier, when he is liable for such loss, is generally the value of the goods at the destination to which he undertook to carry *722 them, with interest on such value for the time when the goods should have been delivered, deducting, however, the unpaid cost of transportation, but adding such incidental damages as naturally and proximately flow from the loss. This, at least in the great majority of cases, will be the extent of the loss of the shipper, and of the compensation for its breach, which it may be reasonably supposed was in the contemplation of the parties at the time of the making of the contract.”

In this State, it is established by the prior course of decision that interest is recoverable in cases of this character, as a matter of right. Generally speaking, such interest is to be recovered from the time the property should be delivered at the point of destination. However, where the suit is instituted subsequent to that time, it is competent to give interest on the value of the property lost, from the date of the institution of the suit, as was decided by the Supreme Court in Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268 . [See, also, Gray v. Mo. R. Packet Co., 64 Mo. 47 ; Lachner Bros. v. Adams Express Co., 72 Mo. App. 13, 21 ; Goodman v. Missouri, K. & T. R. Co., 71 Mo. App. 460, 464 ; Smith v. Whitman, 13 Mo. 352 .]

■The broad statement that interest may not be recovered in actions ex delicto is not warranted by the authorities. Indeed, the statute (section 5430, R. S. 1909) authorizes the jury, “if they shall think fit,” to give damages in the nature of interest, over and above the value of the goods, in suits for conversion. Under this statute, it is said that interest is recoverable in a suit ex delicto as for conversion, if the jury sees fit to give it, but not as a matter of right. [See State ex rel. v. Hope, 121 Mo. 34 , 25 S. W. 893 ; see, also, Lack v. Brecht, 166 Mo. 242 , 65 S. W. 976 .] There are other cases where it is said to be improper to allow interest on damages recovered on the ground of negligence alone as where property is destroyed through the negligent setting out of a fire by a locomotive. [See De- *723 Steiger v. Hannibal & St. J. R. Co., 73 Mo. 33 ; Atkinson v. Atl. & Pac. R. Co., 63 Mo. 367 .] So, too, tbe. rule is declared that interest may not be recovered on tbe amount of damages suffered through the negligent killing of stock on a railroad. [See Meyer v. Atl. & Pac. R. Co., 64 Mo. 542 .] Also, in Gerst v. St. Louis, 185 Mo. 191, 211 , 84 S. W. 34 , involving a suit for damages to real estate, it is said that interest is not recoverable on damages in actions ex delicto, where no pecuniary benefit could accrue by reason of the injury.

But, after all, none of these cases purports to disapprove the rule above stated, that interest may be recovered on the amount of damages suffered in suits of the character here in judgment. The cases last above pointed out treat with the question concerning unliquidated damages in actions of tort, generally speaking. But the rule with respect to common carriers of freight we apprehend stands on an entirely different footing, so as to segregate' the damages which accrue from a loss by such carriers into a separate class as appears throughout the law. Indeed, a common carrier is an insurer of inanimate freight, save against the act of God or the public enemy, and is an insurer, too, with respect to live stock in his, custody for transportation, save against the act of God, the public enemy, the carelessness of the shipper, or the vicious propensities of the animals themselves. This being true, the carrier is required to deliver the goods intact, except as above stated, and in event of his failure, he is required to respond for such value and interest thereon from the time- the delivery should be made at the point of destination. This is true, too, Mr. Hutchinson says, where the goods have not been lost or destroyed, but are delivered only in a depreciated condition, attributable to causes for which the carrier is responsible. Even in such cases, the measure of damages is the difference, after deducting the cost of transportation, between their value as actually delivered and *724 as they should have been delivered, including interest and other matters pointed out by the author. [See 3 Hutchinson on Carriers (3 Ed.), section 1362.]

But be this as it may, the rule of decision in this State is well established to the effect that interest is recoverable in suits of this character against the common carrier on the value of the property lost, as above stated. [See Dunn v. Hannibal & St. J. R. Co., 68 Mo. 268 ; Gray v. Mo. R. Packet Co., 64 Mo. 47 ; Lachner Bros. v. Adams Express Co., 72 Mo. App. 13, 21 ; Goodman v. Missouri, K. & T. R. Co., 71 Mo. App. 460, 464 .] The authority of these cases is in nowise impaired by more recent decisions, so far as we have been able to discover. What was said, therefore, on this question in Reading v. Chicago, B. & Q. R. Co., 188 Mo. App. 41 , 173 S. W. 451 , should be, and is, disapproved.

But a recovery may not be had for an amount in excess of the prayer. The petition says nothing as to interest, whereas it should pray for it. [Shockley v. Fischer, 21 Mo. App. 551 ; Van Riper et al. v. Morton, et al., 61 Mo. App. 440, 444 ; Farrell v. Fire Ins. Co., 66 Mo. App. 153 .]

The judgment should be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and Allen, J., concur.