Ball v. Lusk

FARRINGTON, J. Plaintiffs (the respondents here) recovered a judgment in the trial court for damages growing out of a shipment of live stock from Imboden, Arkansas, to Brandsville, Missouri. The defendants are the receivers of the common carrier that handled the shipment, and appeal from the judgment for $150, assigning several grounds of error.. At the oral argument counsel for appellants consented that the judgment be sustained for the sum of $48, the value of a steer that had a broken leg when it reached the destination point and which was left in defendants’ charge and killed. The items of damage claimed in plaintiffs ’ petition are as follows: [300] Excess shrinkage by reason of delay ... .$150 Damage from bruises and injuries...... 100 One killed ............................ 48 Total damage ..'..................$298 The court in the instructions eliminated the item of “excess shrinkage,” evidently because of a failure of proof upon which such issue could be submitted. This limited the recovery sought in the petition to damage from bruises and injuries ($100), and to damages for the one killed ($48). Complaint is made that the court submitted to the jury the question concerning the amount of damage sustained from bruises and injuries, for the reason that there was no evidence whatever from which the jury could intelligently measure the damage on this item; and we think the point is well taken. The record merely shows that one cow was injured in her back, preventing her from standing up for about a week, but she did recover and was sold with the remainder of the herd sometime in the month of September, 1914. The shipment was started from Imboden on the afternoon of July 31, 1914, and reached Brandsville on the morning of August 1,1914. It is further shown that some eight or .ten head of the cattle were bruised and skinned up and made no improvement for at least ten days. What their value was (except as to the one steer) prior to and following the injuries, does not appear. There being no evidence introduced tending to show the extent of the plaintiffs’ damage, the judgment cannot be allowed to stand as rendered. [Gaibout v. Clark, 24 Mo. App. 426, 428.] The record is silent on whether there was any money expended in curing and caring for those that were injured. .It is not shown what the weight of the cattle was before or after the injury, or what the extent of the. shrinkage, if any, was. So far as the record before us shows, no witness even ventured his conclusion as to the extent of the damage sustained [301] to the cow or the damage from the bruises and injuries to the others; the jury was deprived entirely of evidence upon which it could determine the extent of the damages for the bruises and injuries. As was said in the case of McCrary v. Railway Co., 109 Mo. App. l. c. 571, 83 S. W. 82, cited by respondents: “. . . the different market values per pound of different classes of cattle, the condition of the cattle from fatigue, the amount of pounds lost by unusual shrinkage, were all matters of fact to be stated by the witness.” When liability is shown, the jury must have some evidence to direct them to the proper amount of damages to be awarded. The contract of shipment introduced in evidence shows that it pertained to an interstate shipment and that the liability for loss and injury is limited. Such contracts are valid and binding and have been sustained in a number of decisions by the United States Supreme Court. [See, Adams Express Co. v. Croninger, 226 U. S. 491, 57 L. Ed. 314; Missouri, Kansas & Texas Ry. Co. v. Harriman Brothers, 227 U. S. 657, 57 L. Ed. 690; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, 57 L. Ed. 683; Wyatt v. Railroad, 173 Mo. App. 210, 158 S. W. 720.] The point is made that notice of the injury was not given within the time required by the contract. While the evidence shows that the car reached Brandsville on August 1st, and the notice introduced in evidence bears the date, August 5th, yet' one of the plaintiffs testified that he made out the notice and may have dated it wrong, but that he delivered it either the day the cattle arrived or the next morning. This raised a question for the determination of the jury. Because of the error contained in the instruction, in submitting to the jury the question of the amount of damage without evidence, the judgment cannot stand and there will have to be another trial unless respondents accept- appellants ’ offer to permit the judgment to [302] stand in the sum of $18 — the proven value of the steer killed. The case being in this condition makes unnecessary a discussion of the assignment as to a failure of the evidence to show that the damage resulted from a negligent handling of the shipment, though.we think the evidence sufficient to take that question to the jury.. If, within ten days from the date on which this opinion is handed down,-the respondents file in this court a written remittitur of $102 of the judgment, the same will be affirmed; otherwise, an order will be entered reversing the judgment and remanding the cause for a new trial. Robertson, P. J., and Sturgis, J., concur.