Burnes v. Chicago, Rock Island & Pacific Railway Co.
Missouri Court of Appeals
Appeal from Buchanan Circuit Court. — Eon. Wm. D. Bush, Judge. The court should have directed a verdict for the defendant. First, because there was an entire failure of proof to support the allegations of the petition and to support the theory of the plaintiff that an oral contract for a continuous carriage was made with the defendant. He is bound by the theory adopted by him and cannot recover upon any other. This is the settled law of this state. Hill v. Meyer Bros.
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Appeal from Buchanan Circuit Court. — Eon. Wm. D. Bush, Judge. The court should have directed a verdict for the defendant. First, because there was an entire failure of proof to support the allegations of the petition and to support the theory of the plaintiff that an oral contract for a continuous carriage was made with the defendant. He is bound by the theory adopted by him and cannot recover upon any other. This is the settled law of this state. Hill v. Meyer Bros. Co., 140 Mo. 433; Brick Co. v. Railroad, 213 Mo. 715; Marr v. Zeidler, 145 Mo. App. 199; Atterbury & Nichols v. Hopkins, 122…
1Opinion of the CourtJohnson, J.
This action was before us on a former appeal and the judgment, which was for defendant, was reversed and the cause remanded on account of error in the instructions. [144 Mo. App. 71.] A second trial resulted in a verdict and judgment for plaintiff and the cause now is before us on fhe appeal of defendant.
The action is to recover damages'for lost baggage belonging to plaintiff and his wife. The petition alleges “that on or about the first day of January, 1908, plaintiff and his wife became passengers at St. Joseph, Missouri, on one of defendant’s railway trains to be •carried from St. Joseph,…
2Cases cited5 opinions
- Curtis v. Delaware, Lackawanna & Western RailroadNew York Court of Appeals · 1878
- Hubbard v. Mobile & Ohio Railway Co.Missouri Court of Appeals · 1905
- Withey v. Pere Marquette RailroadMichigan Supreme Court · 1905
- Richardson v. Louisville & Nashville RailroadSupreme Court of Alabama · 1888
- Burnes v. Chicago, Rock Island & Pacific Railway Co.Missouri Court of Appeals · 1910