Ross v. St. Louis Iron Mountain & Southern Railway Co.

OPINION.

Appellant’s assignments of error go to the action of the court in refusing to give an instruction in the nature of a demurrer to the evidence, and in admitting evidence objected to, and in giving an instruction touching the same question as that raised in the objections to evidence. We shall consider these in the order stated.

The action being commenced in a justice’s court," the pleadings were not as carefully drawn as is usually found in the circuit court. There is, however, a sufficient statement to charge the defendant as a bailee of goods. Much space in appellant’s'brief is given to the contention that the instruments and medicine contained in the grip were not ordinary baggage such as is contemplated by section 3226, Revised Statutes 1909, and that the appellant canno.t be held liable for the loss of the articles in plaintiff’s grip as “baggage.” Without going into this question, it may be said that if such articles can be classed as “baggage,” defendant would be held liable for those negligently lost or damaged while in its keeping. If such articles are not “baggage,” the defendant did accept the grip *159and undertook to transport it to Crane, Mo., and a sufficient showing is made to at least charge the defendant with the common law liability of a bailee. The plaintiff proved that when he delivered the grip to defendant it was in good condition and when he received it about sixty days later some of the articles were gone and some damaged. This is sufficient to make out a prima-facie case of negligence against a bailee. If it was not baggage for which the defendant company received compensation to carry, the defendant was a gratuitous bailee. [6 Cyc. 663.] Besides, the loss of only $3.50 was no greater than could be contemplated by the parties from the loss of all ordinary baggage. The plaintiff further shows that he went to Berryville, Ark., in search of his property at an expense of $10; and as the articles in the grip were worth $26.50, plaintiff is entiled to recover this item of expense. [6 Cyc. 677.]

As to the admissibility of the evidence and the propriety of the instructions on the damage occasioned to the doctor in the loss of fees by reason of his not having his instruments: Plaintiff’s own testimony as presented to us clearly establishes the error complained of. He and his witness who was at the time of the shipment the agent of the defendant company, testified that neither the company nor the agent knew the contents of the grip. The defendant had no knowledge of the use to which the articles in the grip were to be put. The law is now well settled that in the absence of special contract the carrier cannot be held liable for damage which was not in. the contemplation of the parties. The rule is well stated in the case of Fitch v. Telegraph Co., 150 Mo. App. l. c. 159, 130 S. W. 44, as follows: “It is the established law that when the form of the remedy adopted proceeds as for a breach of contract, the party may recover only such damages as may fairly and reasonably be considered either as arising naturally according to' the usual *160course of things from a breach of the contract itself or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the breach of it. This is the rule of Hadley v. Baxendale, 9 Exch. 341, and it applies as well to suits counting on the breach of contract to transmit a telegraph message as to any other. Indeed, such is the accepted doctrine throughout the éouñtry when the contract and not the tort is counted upon for damages. [See the following cases in point: Melso v. W. U. Tel. Co., 72 Mo. 111; Abeles v. W. U. Tel. Co., 37 Mo. App. 554; Hughes v. W. U. Tel. Co., 79 Mo. App. 133; Primrose v. W. U. Tel. Co., 154 U. S. 1; Jones on Telegraph Companies, secs. 516, 517.] ” A like principle runs through the law of torts, which is that a wrongdoer can be made to respond in compensatory damages for only such injury as can be reasonably and naturally anticipated to flow from the act done. It follows that the court erred in admitting the evidence complained of and in submitting the issue raised thereby to the jury.

The judgment is accordingly affirmed on condition that respondent within ten days -from the date of the filing of this opinion file with the clerk of this court á written remittitur of all the judgment except $13.50 with interest from the date of the rendition of the judgment in the circuit court; otherwise, the judgment will be reversed and the cause remanded for a new trial.

ON MOTION FOR REHEARING.

Appellant files a motion for rehearing, complaining only of that part of the opinion allowing plaintiff the sum of ten dollars as expenses incurred by him in searching for his baggage.

The first point in the motion -is that the statement filed in the justice’s court did not contain any *161item as to such expenses. As to this, we find in the statement filed with the justice — among other items of damage claimed — the following: “And for further damages in the trips made in search of the lost baggage at Berryville, Ark., $15.” It is true that his evidence only showed an expenditure, of ten dollars on this item — which was the amount allowed.

Appellant next contends that there is no evidence as to this item. Plaintiff’s testimony shows that he did not make the trip to Berryville until thirty days after his goods were lost. He testified, directing his remark to the defendant, “but you people never made any effort . . . and then I told you I went to Berryville which was two days at five dollars a day after those goods.” Objection was made to certain items contained in the foregoing answer which we will not quote. The objection of Mr. D'avid for defendant is as follows: “We ask to have the court exclude that part of the testimony wherein he stated he bought some goods that proved to be worthless.” The court excluded that part. There was no objection made to the testimony in regard to the expense incurred in searching for the goods.

We therefore have a claim in the statement filed with the justice for expense incurred in searching for the goods, together with evidence of the amount expended — going in without objection.

We are cited to the case of Spooner v. Railway Company, 23 Mo. App. l. c. 411. It is only necessary to quote one sentence from that opinion to show that the question here was not involved in that case: “Besides there was no evidence that the plaintiff sought the baggage.”

The evidence before us clearly shows that the defendant was guilty of negligence in handling plaintiff’s property. For thirty days he waited in vain, for defendant to trace it and return it to him. His goods *162were actually worth $26.50. On hearing that they had been sent to Berryville, Ark., he incurred an expense of $10 to go there and ascertain that fact and get his goods, giving his own time without charge; and he secured information on that trip which he gave to defendant’s, agent at Crane that finally resulted in defendant locating the goods and getting them back to plaintiff after thirty days more. The grip had been at Berryville, but before plaintiff reached there it had been forwarded by the agent at that place to someone else at a station in Missouri.

When property is lost by the negligence of a bailee it is his duty to search for and recover the same; and it is with little grace that a negligent bailee complains of having to pay a reasonable expense incurred by the owner of the goods in helping to locate his property. “Reasonable expense,” in such a ease should always fall within the reasonable value of the goods lost.

The motion for rehearing.is overruled.