Loomis v. Wabash, St. Louis & Pacific Ry. Co.

Opinion by Philips, P. J. — 350 — , We will consider the objections to the proceedings of the. circuit courj; in the order insisted - on by appellant in its brief. 1. As to the first shipment, it is insisted by defendant that.its liability ceased on the arrival of the salt at the station north oí Lexington. This presents the inquiry, whether, the delivery, of the goods at said station was a compliance with the terms of the written bill of lading ? The stipulation is, that the defendant shall transport the salt by the Wabash, St. Louis & P. R. R. Co., and its-connecting forwarding lines, “until the said goods or merchandise shall have reached the point named in this contract.” The point named, under the head of “Destination,” -is “E. Gr. Loomis & Co., Lexington, Mo.” Looking at the language of this contract alone, I am unable to perceive how defendant could qierform its contract by delivering the goods at a point short of Lexington. The point where it actually delivered the goods was a mile from Lexington, situated in another county, with the Missouri river intervening, unbridged, and accessible only by ferry boat. The depot was not even at Lexing- - ton. It could hardly .be maintained that defendant had kept its undertaking if its line of. road- had terminated fifty miles instead of one mile from Lexington. . We may concede the proposition that a common carrier is not ordinarily bound to carry freight beyond the terminus of its line of transportation;, but the law is equally well settled that it may, by contract, extend its undertaking to deliver beyond such terminus. The liability in such cases has generally turned on the question, whether such contract was executed on the part of the carrier corporation by one having authority therefor? In Grover and Baker Sewing Machine Co.. (70 Mo. 672), the defendant company was discharged from liability on the ground that the person executing the contract on behalf of the company was only a special agent, who, as shown by the evidence, had no authority in fact from his imputed principal to make such contract; and there was no evidence of a holding out to the public of such — 351 — agent as having snch authority. But the decision very clearly holds, that had the contract of affreightment been made by a general agent of the company, it would have been binding on it to deliver the goods at a point beyond the line of its road. The latter condition is precisely this case. The bill of lading is signed in behalf of the defendant by “C. L. Rising, General Agent.” As this contract was admitted in evidence without objection, we are authorized to assume that it was executed by a general agent of defendant, having authority to make such a contract. If so it bound it to the letter and spirit of the undertaking, in the absence of any competent evidence showing that the terms employed had any other significance than their ordinary import. 2. As to the second shipment, the defendant contends that it was the duty of the plaintiff to have paid the overcharge under protest, and then sued the defendant to recover back the excess. The-vice in this proposition lies in the confounding by counsel of a privilege or right accorded by law to the consignee, and the duty or obligation resting absolutely on him to exercise the privilege. The authority cited (Hutch, on Car. 447) only says the consignee, if he desires to do so, may submit to the wrong, tender the overcharge under protest, and if the money be accepted, he may afterwards recover back the amount wrongfully exacted. But suppose he has not the money to tender, or does not see fit to submit to the wrong, what principle of law or ethics would permit the wrong-doer, when sued for breach of his contract, to plead his own wrong or fraud as a defence, to which the complainant refused to submit ? There are some propositions so opposed to the innate sense of right and common fairness as to require neither argument nor authority to confront them. Their refutation lies in their manifest injustice. 3. The third proposition" of defendant is, that when the salt arrived at the depot at Lexington, this was a delivery, without more, and terminated defendant’s liability. We — 352 — are again referred to Hutch, on Car. 367, in support. Of course every enunciation of a legal principle or proposition, must be considered relatively. What the author i® discussing in the connection cited is the much controverted question as to whether the undertaking of a railroad carrier is fully met by the safe transport of the goods to the designated railroad station, or whether it does not extend further? Some courts hold that it is the duty of the consignee to be on the look-out f or the arrival of the assignment, and to be at the station promptly to receive the goods, while others maintain that the duty rests upon the carrier, in case the consignee is not .present to receive the goods, to safely store them and notify him of their arrival, and allow him a reasonable opportunity to remove them. It is not necessary in this case that we should undertake to determine which of these rules is the better. It is not the issue presented in this record. As to the first shipment, plaintiff contends that the goods were not delivered at the designated destination, and as to the second consignment, that while defendant did carry them to the designated point, after the arrival it imposed conditions on their delivery to the consignee in violation of its contract. 4. It is next insisted that the circuit court tried the case on the wrong theory as to the measure of damages. Defendant now contends, that by the express terms of the contract, the damage in question should have been estimated on a basis of the value of the salt at Chicago, the point from which it was shipped; whereas, the court directed the jury to estimate it according to its value at Lexington, the point to which it was shipped. We are relieved from the discussion of the proper construction of the contract in this particular, because the instruction asked by the defendant and given by the court, recognized that Lexington was the correct point. It is settled by the repeated decisions ■ of the Supreme Court of this state that the appellant cannot be heard to allege that as error of the trial court, which he invited — 353 — the court to commit: “It hardly lies in the mouth of the defendant to object here to a technical blunder which he waived on the trial by adopting the error.”— Davis v. Brown, 62 Mo. 313; Noble v. Blount, 77 Mo. 235; Holmes v. Braidwood, Sup. Ct. Mo., not yet reported; Walker v. Owen, 79 Mo. 568. 5. The final objection made here by appellant is, that the statement filed in the justice’s court contains two independent causes of action, on which there should have been a separate finding by the jury; whereas the jury returned a general verdict. We are not aware that this question has been passed upon by the higher courts of this state, and the determination of it is not free from difficulty. At common law, separate causes of action could not’ thus be united. The practice is authorized by our statute. Under the Practice Act (Eev. Stat. sect. 3512) the plaintiff is authorized to unite in the same petition several causes of action ; “but the causes of action so united must be separately stated, with the relief sought for each cause of action, in such manner as that they may be intelligibly distinguished.” This provision, however, applies only to practice in the circuit or other courts of like jurisdiction. Under this statute it has been uniformly held that where separate causes are thus united, there must be a separate finding by the jury on each count. A general verdict would be error, inviting a motion in arrest of judgment. It will be seen, however, that' all the cases, in which this doctrine is announced, arose in the circuit court. They do not, therefore, necessarily- determine the question at bar. Our justices’ courts have no jurisdiction, except as conferred by statute. They are simply creatures of the statute; and do not proceed according to common law methods. — State v. Metzger, 26 Mo. 65; Hausberger v. P. R. R., 43 Mo. 196. ^Section 2850, Eevised Statutes, concerning justices’ courts declares: “The plaintiff may unite in his suit as many causes of action as he may have.” — 354 — It is worthy of observation that there is a marked difference between this and section 3512. While section 2850 authorizes the plaintiff, suing in a justice’s court, to unite in his suit as many causes as he may have, it does not follow up the permission, as in section 3512, with the requirement that the several causes shall be separately stated, with the relief sought for each cause. There must be some significance in this difference. The common law rule was that the jury must make a finding on all the issues, and if they did not the judgment would be arrested. As where in an action of indebitatus assumpsit there was a plea of the general issue, or nil debit, and further pleas alleging fraud in the consideration of the note sued on, a general finding for the plaintiff was error. — Hickman v. Byrd, 1 Mo. 495. So in an action for assault and battery, where the answer tendered the general issue, and a justification of son assault demesne, a general verdict was bad, because there was no finding on the issue of justification. — Fenwick v. Logan, 1 Mo. 401. But the Missouri court of appeals, in Flesh v. Christopher (11 Mo. App. 463), held in effect, that this rule of common law does not now apply to proceedings in justices’ courts. The plaintiff sued for a balance alleged to be due on a builder’s contract, and the contractee pleaded, what in the circuit court would be denominated a counter-claim, and in a justice’s court a set-off. There was a general verdict for the plaintiff, without any special finding as to the counter-claim. It was held not to be error. Sections 2851, 2852, 2855, 2856, and 3011 especially, Revised Statutes, as well as the act generally respecting the mode of procedure in justices’ courts, indicate that it was the purpose of the legislature to simplify the proceedings as far as practicable, and to divest them of those technicalities which are deemed essentials in the graver issues involved in the courts of higher jurisdiction; so the unlearned in the law might manage causes there, and reach a judgment with little form. I am satisfied that a general verdict on all the issues — 355 — involved in this case would not have been bad in the justice’s court. The only inquiry, therefore, is, does a different rule apply in the trial and judgment in the circuit court on appeal ? Section 3052, Eevised Statutes, directs that the circuit court shall proceed “to hear, try, and determine the same anew,” etc. Now it does seem to me that, unless it can be maintained that when the cause reaches the circuit court on appeal it loses its character as a case of the justice’s jurisdiction so as to bring it under the operation of section 3512, defendant’s position is not tenable. In Soutier v. Kellerman (18 Mo. 509), decided shortly after the adoption of the code of practice of 1849, Gamble, J., held that the new code does not apply to the trial of a cause appealed from a justice’s court. There has been no such enlargement of the rule by statute to change this principle as applied to the question at bar. In the revision of 1879, section 2984, it is provided: “That the proceedings upon the trial of suits before justices of the peace, with respect ,to the examination of witnesses, the submission of evidence and argument, and the order and conduct of the trial, when no other provision is made by law, shall be governed by the usages ■and practice in the circuit court, so far as the same may be applicable.” But it is obvious that this does not touch the matter of the verdict, or a general verdict on all the issues. The pleadings are not reformed on appeal. And as on appeal it is a trial de novo, the same character of judgment which is good in the justice’s court must logically be good on appeal. It follows, the other judges concurring, that the judgment of the circuit court must be affirmed