Wernick v. St. Louis & San Francisco Railroad
Missouri Court of Appeals
Appeal from Scott Circuit Court. — Hon. Henry G. Riley, Judge. The plaintiff has not declared on the contract of shipment, but has founded his action on the alleged negligence of the defendant in not shipping his mules on the first or “through” freight train; and he must recover, if at all, on such allegation of negligence. The plaintiff is bound by the allegations in Ms petition.
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Appeal from Scott Circuit Court. — Hon. Henry G. Riley, Judge. The plaintiff has not declared on the contract of shipment, but has founded his action on the alleged negligence of the defendant in not shipping his mules on the first or “through” freight train; and he must recover, if at all, on such allegation of negligence. The plaintiff is bound by the allegations in Ms petition. Link v. Váugn, 17 Mo. 585; Bruce v. Simms, 34 Mo. 246; Bensick v. Cook, 110 Mo. 182; Weil v. Posten, 77 Mo. 287; CMtty v. Railroad, 148 Mo. 74, and cases cited; Breeding v. Mining Co., 103 Mo. App. 176. The…
1Opinion of the CourtGoode, J.
(after stating the facts.) —The instruction given on plaintiff’s request advised the jury that if the “mules were injured by or in consequence of the negligence or carelessness of the defendant company to ship them according to contract” the verdict should be for plaintiff. This instruction jumbled tort and contract as theories of the case, authorizing a.verdict for plaintiff if there had been a tortious breach, so to speak, of the contract of shipment. The essence of this contract, so far as the case in hand is concerned was the promise of the agent at McMullen to send the mules by the…
2Cases cited21 opinions
- Witting v. St. Louis & San Francisco Railway Co.Supreme Court of Missouri · 1890
- Nevin v. Pullman Palace Car Co.Illinois Supreme Court · 1883
- Kimball v. Rutland & Burlington RailroadSupreme Court of Vermont · 1854
- Ayres v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1888
- Clark v. St. Louis, Kansas City, & Northern Railway Co.Supreme Court of Missouri · 1877
16 more not listed; retrieve them via the Exa API.
3Cited by13 opinions
- Libby v. St. Louis, Iron Mountain & Southern Railway Co.Missouri Court of Appeals · 1909
- State Ex Rel. Cummins Missouri Diesel Sales Corp. v. EversoleMissouri Court of Appeals · 1960
- Stamm v. ReuterMissouri Court of Appeals · 1968
- Marcheck v. KluteMissouri Court of Appeals · 1908
- Deierling v. Wabash RailroadMissouri Court of Appeals · 1912
8 more not listed; retrieve them via the Exa API.