This suit is for damages alleged to have been caused by the negligent delay of defendant, a common carrier, in the transportation of a carload of horses shipped by plaintiff from Horace and Bison, Nansas, to East St. Louis. The first trial of the case resulted in a verdict of eight hundred dollars for plaintiff. A new trial was granted and at the second trial, plaintiff again prevailed and was given a verdict of fifteen hundred dollars, but the court again interfered and, on the motion of defendant, granted a new trial on the ground that , the verdict was excessive. Before the hearing of the motion for a new trial, plaintiff filed ■ a remittitur of one hundred and sixty dollars, but this action of plaintiff did not prevent the court from granting a new trial. Plaintiff appealed and argues that the verdict, though excessive as rendered, was reduced to proper proportions by the remittitur, but offers further to reduce the verdict should we think it still too large.
The cause of action pleaded in the amended petition on which the case was tried is founded on a breach of the common law duty of defendant as a carrier and, consequently, is an action sounding in tort. Defendant argues that the amendment should not have been allowed, for the reason that the cause pleaded in the original petition is founded on a contract for transportation. We dismiss the point with the observation that the cause stated in the original petition is the breach of defendant’s common law duty and not the breach of a contract and, therefore, that the amended petition did not change the nature of the action.
*165Plaintiff, a horse dealer, had purchased eighteen head of horses in Western Kansas and, desiring to ship them to market, engaged a car of defendant to transport them to East St. Louis. Four of the horses were at Horace, a station in the extreme western part of Kansas on defendant’s Colorado line, and fourteen were at Bison, a station one hundred and forty-six miles east of Horace and about twenty-six miles west of Hoisington, a division station. The main line of defendant’s road ran east from Hoisington through Geneseo and Osawatomie to Kansas City and thence to St. Louis, but a branch line diverged to the southeast and ran to Wichita and Fort Scott and thence on to St. Louis. A son of plaintiff attended to the shipment of the four horses at Horace. He and the agent of defendant executed a written contract of affreightment to cover the whole shipment, provision being made for stopping at Bison to load the remaining fourteen head. The horses were loaded at Horace about ten o’clock p. m., May 28, 1903, and shortly after, started on their journey. At the time defendant received the shipment, it was known to its agent at Horace that the main line was washed out some place east of Geneseo and, accordingly, the contract entered into by plaintiff’s son and defendant’s agent provided for the shipment going over the branch line via Wichita and Fort Scott. When the train reached Bison, the next morning, the agent of defendant at that point knew both of defendant’s lines to the east were blockaded by washouts and high water. Plaintiff was at Bison to attend to loading the fourteen horses. He states he had just come in from interior places and did not know the plight of defendant caused by high waters. He claims the agent did not inform him that the roads were blockaded but allowed him to load the fourteen horses. For some reason, not important, plaintiff unloaded one of the horses which his son had loaded at Horace and left it at Bison. He went on the train to Hoisington where he learned *166for the first time that defendant was disabled by floods from going forward with the shipment. Defendant’s agent at Hoisington ascertained by telephoning that the Santa Fe railroad was in operation from Great Bend to Wichita and that the car could be sent over that line. Great Bend is ten miles south of Hoisington and the two places were connected by a branch line of defendant. Accordingly, the car was run down to Great Bend and the horses were shipped over the Santa Fe road to Wichita, where they were delivered to defendant and carried to St. Louis where they arrived June 11th. In the usual course of transportation, the horses should have arrived in St. Louis nine or ten days before they did. They cost plaintiff $1677 at the shipping points and, had they not been delayed in transportation, would have sold on the market — so plaintiff states — at from $2100 to $2300. They were so damaged that they sold for only $1020. Plaintiff incurred eighty dollars additional expense on account of the delay.
The principal defense is that the floods which interrupted traffic on defendant’s roads were an act of God and that defendant should not be held accountable for damages caused thereby. It is conceded by plaintiff, in effect, that defendant was put out of business by an extraordinary outburst of nature, but plaintiff contends that defendant knew of its inability to complete the transportation when it received the shipment and the rule is invoked that a carrier will not be excused from liability for the consequences of an unusual delay in transportation caused by an act of God, where the disability is existent and known to the carrier at the time the property is received for shipment and the carrier fails to advise the shipper of the existing conditions and to stipulate against their consequences.
The soundness of this rule cannot be questioned. The common law duty of a carrier to receive.goods offered for shipment does not obtain where the carrier has been disabled by vis major from performing that *167duty. In such cases the carrier may refuse to receive the property, or it may accept it on stipulation that the transportation will he undertaken subject to the delays • caused by the results of vis major, “but the acceptance of goods for shipment without such stipulation or without notifying the shipper of the fact that they can not be promptly delivered is tantamount to an assurance that they will be delivered within a reasonable time, except for the intervention of excusing causes of subsequent occurrence.” [Russell Grain Co. v. Railway, 114 Mo. App. 488.]
The application of these rules to the facts in hand leads to the conclusion that with respect to the three horses shipped at Horace, defendant cannot be held liable for the delay that occurred for the reason that the delay was caused by the act of God and the disablement of defendant’s Wichita line did not occur until the transportation had begun.- The argument of plaintiff that the contract for the shipment did not become complete until the horses were loaded at Bison and that defendant then knew of its disability is rejected for the reason (if for no other) that the cause of action pleaded.in the petition is not on that contract but is in tort and, therefore, the issue as to the Horace shipment was the common law duty defendant assumed by receiving the horses at Horace and undertaking to carry them to St. Louis. Since defendant had no knowledge either express or constructive at that time that it would be unable to perform its duty on account of a subsequent manifestation of a superior force, it could not be guilty of any breach of duty in receiving the property for transportation. It is equally clear that in giving proper consideration to the evidence of plaintiff we must hold that an issue of fact is presented with respect to the shipment of the fourteen horses at Bison. Still bearing in mind that the action is ex delicto not ex contractu, the duty of defendant with respect to that shipment is to be measured by the conditions that ex*168isted when the property was accepted at Bison and not by those obtaining when the Horace shipment was accepted. Defendant knew it conld not complete the transportation in the usual time when it accepted that shipment and, since it did not notify plaintiff of its disability nor stipulate against the consequences thereof, it must be held liable for the damages sustained by plaintiff on account of the unusual delay in the transportation of that shipment.
Clearly the verdict was excessive. Not only was plaintiff permitted to recover on account of the Horace shipment, but the assessment of damages to the Bison shipment was too high. Plaintiff should have been held to his minimum estimate of the value of the animals on the St. Louis market had there been no unusual delay. Instead, he based his remittitur on his maximum estimate of value. Other objections of defendant to the instruction on the measure of damages are answered in our opinion in the recent case of Hahn v. Railroad, 141 Mo. App. 453.
In the view of the case we have expressed herein the amount of the entire excess in the verdict cannot be ascertained from the evidence, and it follows that we cannot accept the suggestion of plaintiff that he be allowed to enter a further remittitur. We can do nothing but approve the action of the trial court in setting aside the verdict and granting a new trial. Accordingly the judgment is affirmed.
All concur.