Blackmer & Post Pipe Co. v. Mobile & Ohio Railroad

REYNOLDS, P. J. This is the second appeal in this case, the first appeal by defendant. It was reversed and remanded, the opinion being reported un [25] der the title of Blackmer & Post Pipe Co. v. Mobile & Ohio Railroad Co., 137 Mo. App. 133, 119 S. W. 13. At the same time the companion case of the same plaintiff against this defendant and other railroad-companies was also reversed and remanded, the latter casé being reported under the title of Blackmer & Post Pipe Co. v. Mobile & Ohio Railroad Company et al., 137 Mo. App. 479, 119 S. W. 1. This present case-reaching the circuit court under our order of remand-er, plaintiff “dismissed without prejudice,” it is stated, as to all of the defendants except the Mobile &■ Ohio Railroad Company, and filed an amended petition against that company alone, founded on losses-said to have been sustained on the same shipments involved in the former case. This amended petition' contains four counts, the pleader evidently following the suggestion made by this court in reversing and remanding, that as before presented the petition was' confusing in that it appeared to charge, in one and the same count, the carrier on its common law liability and for breach of contract. In and by the first count of the amended petition; plaintiff avers common law liability on the part of the common carrier for sewer pipe damaged in transit, damage being claimed in the aggregate sum of $285.77; the shipment contained’ in four cars. The second count is on the same shipment in the same four cars, the same amount of damage being alleged to have been sustained for negligence in the carriage of the freight in those same cars.' The third count is for damages under the common law liability of the carrier in the transportation of one carload of sew-e-r pipe, damages-laid at $59.40, inclusive of interest and costs; the fourth count claiming the same amount of damages, interest and costs, for negligence in the transportation of the same car of sewer pipe. The answer admitting the incorpOTation of defendant, pleads that the carriage of the sewer pipe was [26] at a reduced rate of freight, on which consideration plaintiff agreed with defendant that the pipe should he carried at the risk of plaintiff. Various other stipulations in the bill of lading are set out which are not now material to notice, except that.it is averred that it was provided among other things in the bills of lading, that claims for loss or damage must be made in writing to the agent at the point of delivery promptly after the arrival of the property; and if delayed more than thirty days after delivery of the property, or after due time of delivery thereof, no carrier of the property should be liable in any event, the answer claiming that this had not been complied with. As a further defense to each of the counts, the five-year Statute of Limitations is set up. These matters were put in issue by the reply. The reply set out that the notice of the breakage had been duly given defendant, its connecting carriers and agents and that plaintiff’s claim for damages was received by defendant as duly presented and was considered by defendant in the same manner as if it had been entered in thirty days, and all requirements regarding the time or manner of presentation of said claim had been waived by the defendant, payment of the claim being refused on other grounds. There was a trial of the cause before the court and a jury, at the conclusion of which, the jury, having been instructed. by the court, returned a verdict in favor of plaintiff on the first count in the aggregate sum of $284. On the third count the jury found for plaintiff and' assessed its damage at the aggregate sum of $43.21. There was also a verdict for plaintiff on the second count in the aggregate sum of $207.84, and on the fourth count in the aggregate sum of $43.21. Judgment followed in the sum of $502.10, “being the aggregate damages as assessed by the jury as aforesaid upon the four counts of the petition.” In due time defendant filed its motion for a new trial and in [27] arrest. Among other grounds stated in the motion for new trial were that the verdict was excessive; that the jury had rendered two verdicts in the same case; that the verdict is void and will not support a judgment. The motion in arrest need not he noticed as it does not appear to have been acted on one way or the other by the court. The court sustained the motion fo.r new trial, as stated in the record, “because the plaintiff sued on two causes of action in four counts, and the jury found for the plaintiff on all four counts, assessing double damages and because the verdict is excessive.” In a memorandum handed down by the court and in the record, it is stated that the motion for new trial was sustained “because the plaintiff sued on two causes of action in four counts, and the jury found for the plaintiff on all four counts, assessing double dam-. ages, and because the verdict is excessive,” and the court did not think the evil could be cured by remittitur. Thereupon counsel for plaintiff filed a written offer to remit such part of the damages theretofore assessed as the court considered excessive. The court declined to enter an order of remittitur, whereupon plaintiff, duly saving exception, perfected its appeal to this court. We confine ourselves to the one proposition that is decisive of the appeal; that is, whether the court committed error in granting a new trial for the reasons assigned, and in overruling the application of plaintiff to the court to remit, and in disregarding and declining the offer of plaintiff to remit. It is to be noted that learned counsel for plaintiff did not indicate in their motion before the trial court how much should be remitted or on what counts a remittitur should be made, but threw upon the court the burthen of determimng what the proper amount of the verdict should be and how much should be re28 milled. That is a burthen the court is not hound to assume. "When a remittitur is offered it should he. stated in so definite a manner that the court may intelligibly act on it. It is argued in our court with great earnestness by counsel for appellant that even taking the sum. total of the verdict, it is not in excess of the amount of damages which were proved up in the case-. "We, as a court, are not authorized- to determine that. This error of the jury in assessing damages on each one of the counts was probably brought about by the form of the verdict submitted to them and by the somewhat confused instruction of the court in that respect, that instruction not clearly telling the jury, as it should, that if they found damages as on common law liability, they should return a verdict for that, in which event plaintiff was not entitled to any damages, or at most mere nominal damages, on the counts sounding in actual damages, and vice versa as to breach of contract. [Lancaster v. Connecticut Mut. Life Ins. Co., 92 Mo. 460, l. c. 467, 5 S. W. 23.] We think the learned trial court committed no error in granting a new trial. Its action in that behalf is affirmed and the cause remanded with directions to proceed in due course of law. Nortoni and Caulfield, JJ., concur.