Missouri, Kansas & Texas Railway Co. v. Truskett , 2 Indian Terr. 633 ( 1899 )

Townsend, J.

The appellant has filed 43 specifications of error, which it has discussed under eight special assignments. They are as follows, to-wit: “(1) The district court should not have permitted appellee to have introduced any evidence under the amended complaint, but should have struck out this complaint on appellant’s motion, and should not have held that appellee complied with terms of written contracts’ and should have directed a verdict for appellant. (2) The appellee should not have been permitted to introduce testimony of the verbal arrangements which contradict the written contracts which the court held binding in this case. (3) The appellee should not have been 'permitted to introduce testimony as to the market value of the cattle in question in Chicago, and the court should have instructed the jury that they could not consider any evidence as to the market value of the cattle in Chicago in this case, but must confine their consideration to the evidence as to the market value of the cattle in question in Kansas City. (4) Neither the appellee nor his brother should have been permitted to testify as to the market value of the cattle in question in Kansas City and in Chicago. (5) The account sales in this case were not competent evidence and should not have been admitted. (6) The court should have instructed the jury that if there was any delay in the transportation of the cattle in question by the appellant, and said delay was occasioned by the act of God, and not by the fault of appellant, the appellee could not recover any damages on account of said delay from the appellant; and the court should not have instructed the jury as it did on the question of the delay on the appellant’s line of railway. (7) The appellee should not have been permitted to offer proof as to the extra feed required for the cattle in question, and was not entitled to recover any damages in this case on account of the expense incurred in feeding the cattle • in controversy. (8) The jury were wrongfully instructed upon the question of the right of the appellee to recover interest on damages in this case.”

As to the first assignment of error, we would say that the appellee in his original complaint set up that the contract of shipment was in writing, but, having subsequently ascertained that the copy furnished him by the agent of appellant was not correct, it became necessary to amend his complaint. In doing so, he states that he was required to sign two contracts in writing, one covering four cars of his cattle,. and the other three cars, and that these contracts were signed after the train was some miles on its journey; and. while he attaches the twro copies to his amended complaint, he asks that they be declared void, and that the appellant be held to its liability as a carrier, independent of the written contracts. The trial court, upon its coming to his knowledge during the trial that appellant had not only signed the written contracts at the time of shipment, but subsequently, and on his return from the shipment, signed the following: “We, the undersigned persons in charge of the live stock mentioned in the within contract, in consideration of the free pass granted us by the Missouri, Kansas & Texas Railway Co., and of the other covenants and agreements contained in said contract, including the rules and regulations printed on the back thereof, all of which, for the consideration aforesaid, are hereby accepted by us, and made a part of this, our contract, and all the terms and conditions of which we hereby agree to observe and be .severally bound by, do hereby expressly agree that during the time we are in charge of said stock and while we are on our return passage, we shall be deemed employes of said Mo., Kan. & Tex. Railway Co., for the purposes of said contract stated, and that we do agree to assume, and do hereby assume, all risks incident to such employment, and that said railway company shall in no case be liable to hs for any injury or damage sustained by us during such time for which it would not be liable to its regular employes. H A. Truskett D.” — held that appellee was bound by the written contracts and appellant cannot complain of being held liable under its own contracts simply by yeaspp. of inartificial ' pleading by the appellee, to which appellant had fully answered, superinduced by the mistake made by its own agent in not furnishing appellee correct copies of the contracts at the commencement of the suit.

Written Contract. Parties bormd by, Oral agreements superseded by written con - tract.

As to the second assignment of error, we say that, while some evidence had been introduced of verbal arrangements, the same was withdrawn by the court frpm the jury, as follows: “The plaintiff rests his case here, and in your absence the defendant submitted a motion which the court has allowed. That motion is to the effect that the court should withdraw from the jury all testimony submitted with reference to the verbal contract between the plaintiff and defendant in this case. The court has sustained that motion, and is of the opinion that whatever talk was had between the plaintiff and the agents of the railroad company was merged in a written contract, and its terms are not to govern the liability of the company in this case. The jury will consider the written contract and its terms as governing between the plaintiff and defendant in this case. ”

As to the third assignment of error, it was in evidence that the appellee notified the agent of appellant at the time of the delivery of the cattle for shipment that they were to be shipped via Kansas City to Chicago, Ill. The contract for the shipment specified Kansas City, Mo., as the destination of the shipment. The trial court upon that question instructed the jury as follows: “The court instructs the jury that, if they should find in this case that the plaintiff is entitled to recover from the defendant, in arriving at the ‘ amount of such damages they must not cosider any evidence as to the market value of the cattle at Chicago, Ill., unless they should find from the evidence that the cattle were to be shipped to and sold only in that market; but if the jury should find from the evidence that the cattle were to be shipped to and sold only in Kansas City, Missouri, they must confine themselves to the evidence with reference to the markets and value of cattle at that place.” The cattle were held by appellee in Kansas City for about 24 hours, and the court instructed the jury as to such destination as follows: “If the jury find from the evidence that they must consider the state of the cattle market at Chicago,- Ill., on. the days in question in this case, in determining' what damages, if any, plaintiff is entitled to recover from defendant in this case, then the court instructs the jury as follows: You are instructed that the plaintiff in this case, if he desired to ship his cattle to Chicago, had no right to delay them in Kansas City in order to test the market there, and then charge to defendans’s negligence any fall in the market at Chicago during the time said cattle were kept from being sold on the market at Chicago by reason of their being so delayed in Kansas City, if you should find that they were so held at Kansas City, Missouri. ’ ’ The cattle were loaded on the cars at Stevens, Ind. T., but, the appellant having no station agent at that point, the contracts on their face purport to ship the cattle from Coffey ville, Kan., which was at that time the end of appellant’s road. The distance from Coffey ville, Kan., to Parsons, Kan., was about 30 miles, and about 12 or 14 hours was consumed in making that distance; and for the delay thus occasioned by appellant in the arrival of the cattle at their destination, were the market repoits and value of the cattle at either Kansas City or Chicago permitted to go to the jury, that they might ascertain if any damages had accrued to appellee by reason of said delay on appellant’s road, and for-that purpose we think the evidence was properly admitted, especially when guarded by the instruction of the court supra. This disposes, also, of the fourth and fifth assignments of error.

Damages. What, market to govern.

A.s to the sixth assignment of error, the contention of appellant is that the fall of a heavy dew is an act of God, which should relieve a common carrier from its liability. We cannot concur with appellant in this contention. Had the dew been of that brand well kown as “Mountain Dew,’’ it migh have affected the engineer and fireman, but not the engine or corporation itself, to the extent of relieving it from the obligation of its contracts.

Damages. For what recoverable.

As to the seventh assignment of error, it was only the extra feed occasioned by the delay that the jury was permitted to consider, which was certainly proper. This is shown by the charge of the trial court to the jury on that point, which is as follows: “The court instructs the jury that the plaintiff cannot recover any damages from the defendant in this case on account of any expense incurred by the plaintiff in feeding the cattle in controversy, unless for an extra amount of feed which may have been required by delay in shipping such cattle between Coffey ville, Kansas, and Paola, Kansas.”

As to the eighth assignment of error, the court instructed the jury as follows: “If you find from the evidence in this case that the plaintiff is entitled to recover, you should ascertain the amount thereof, and on such amount allow, as additional damages, interest at the rate of six per cent, from and after August 3, 1892.” This being an action for damages resulting from the failure of appellant to perform its written contract as a common carrier, we are of the opinion that the foregoing instruction was properly giv<m, and is not subject to the-criticism in Eddy vs Lafayette, 1 C. C. A. 441, 49 Fed. 813, cited by appellant.

The court instructed the jury further as follows: “If you find from the evidence that the defendant, acting through its agents and employes, failed and neglected to provide suitable and proper means for carrying plaintiff’s cattle to Paola, Kansas, and kept them in the cars an unusual length of time, and handled them in a rough and severe manner, whereby they became injured, and depreciated in value, then the defendant is liable to plaintiff for the amount of such injury and damage, to be determined by you from the evidence in this case. * * * If, by reason of the defendant’s negligence in the management and handling of the plaintiff’s cattle on its railway line, they became unusually bruised and injured, and their market value reduced, then the defendant would be liable to the plaintiff for the fair and reasonable amount of such injury and depreciation, to be ascertained by the evidence in this case. ’ ’ Hence, practically, the court limited the recovery to the damages arising in the transportation from Coffeyville to Parsons on appellant’s own line; and unless appellant can show prejudicial error was committed by the court, which must have necessarily, changed the verdict of the jury from what it ought to have been, the appellant cannot be heard' to complain here, and ask for a reversal of the result reached there. We are of the opinion that no intelligent jury could have misapprehended the court’s instructions, and that the verdict of the jury was right, and the judgment of the court upon the same was correct, and it is therefore affirmed. Affirmed.

Clayton and Thomas, JJ., concur.