Bailey v. The Missouri Pacific Railway Company

• Decision Date: 23 November 1914
• Citation: 171 S.W. 44,184 Mo.App. 457
• Parties: S. P. BAILEY and B. A. BAILEY, Respondents, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

171 S.W. 44

184 Mo.App. 457

S. P. BAILEY and B. A. BAILEY, Respondents, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 23, 1914

Appeal from Morgan Circuit Court.--Hon. J. G. Slate, Judge.

Judgment reversed.

C. D Corum for appellant.

(1) Before plaintiffs can recover such special consequential damages as are claimed in this case, they must plead and prove that defendant, at the time of accepting the consignment in question, was notified of the special damages that might be anticipated at a result of delay. Dunne & Grace v. Railroad, 166 Mo.App. 375; Cowherd v Railroad, 151 Mo.App. 7; Gray v. Railroad, 54 Mo.App. 671; Steffen v. Railroad, 156 Mo. 335. (2) A reply which merely denies the "new matter" contained in defendant's answer is no denial at all. Betz v. Tel. Co., 121 Mo.App. 478; Young v Schofield, 132 Mo. 661; Snyder v. Free, 114 Mo. 367. (3) The barrels having been loaded in the cars at Kansas City, Kansas, and transported as a through shipment to Versailles, Missouri, this was an interstate shipment notwithstanding the bill of lading was executed in Kansas City, Missouri. So. P. Term. Co. v. Interstate Commerce Commission, 219 U.S. 527, (55 L.Ed. 320); Railroad Commission v. Worthington, 225 U.S. 108, (56 L.Ed. 1008); State v. Railroad, 71 S.W. 994; Railroad v. Grain Co. , 72 S.W. 419; Railroad v. Grain Co., 73 S.W. 845. (4) The provision in the bill of lading that claims for "loss, damage or delay" must be made within four months is a valid regulation, especially when supported by a reduced rate as in the case at bar. Grain Co. v. Railroad, 177 Mo.App. 197; Hamilton v. Railroad, 177 Mo.App. 151.

J. W. McClelland, R. M. Embry and R. M. Livesay for respondents.

(1) The notice required in the contract is notice of damages done to the article shipped. Aull v. Railroad, 136 Mo.App. 291. (2) In suit for damages on account of delay in a shipment, where the shipper explained to the carrier's station agent and shipping clerk, the nature of the shipment, this was notice to carrier. Morrow v. Railroad, 140 Mo.App. 200. (3) The notice to carrier need not be positive notice, but any fact or circumstance that will put a person of ordinary caution on inquiry, will be sufficient, to say nothing of what notice was given to the agents of defendant. The bill of lading imparts the necessary information to entitle plaintiff to recover. Morrow v. Railroad, 140 Mo.App. 200. (4) Appellant complains about plaintiffs suing for damages to apples in more than one orchard. Under the undisputed evidence in this case, plaintiffs had authority to gather and barrel, ship and collect the money for all apples, regardless of the orchard they were taken from. This is undisputed and plaintiffs had a right to sue for damages in their own name. R. S. 1909, section 1730; Ellis v. Harrison, 104 Mo. 270; Chouteau v. Boughton, 100 Mo. 406; Sawyer v. Railroad, 156 Mo. 468; Nelson v. Hirsch, 102 Mo.App. 498.

OPINION

JOHNSON, J.

--Plaintiffs sued to recover damages resulting to them from an alleged negligent delay in the transportation of two carloads of apple barrels which defendant received at Kansas City and undertook to carry to Versailles, Missouri, and there to deliver to plaintiffs, the consignees.

The barrels were purchased by plaintiffs from a manufacturer in Kansas City, Kansas, and were loaded in two cars on a switch track which connected the factory with the line of the Terminal Railway Company, another common carrier. A "switch card" showing the destination of the cars was tacked on each car by the shipper and the Terminal Company received the cars at the switch track where they were loaded and switched them a mile or more to the yards of defendant in Kansas City, Missouri, where they were received by defendant. The Terminal Company charged $ 4 per car for this service.

Defendant had promised to furnish a large car for the shipment but being unable to do so provided two smaller cars instead, and paid the switching charges on one car and collected the charges on the other from the consignee as a part of the cost of transportation from the factory in Kansas City, Kansas, to Versailles. If a single car had been furnished, as agreed, the switching charge of $ 4 would have been added to the expense bill issued by defendant for the transportation. Defendant issued a bill of lading to the shipper, made out on the form approved by the Interstate Commerce Commission for the transportation of the cars from Kansas City, Missouri, to Versailles.

The barrels were properly designated in the bill as belonging to class "D" for which the rate from Kansas City, Missouri, to Versailles, in the schedules on file with the Interstate Commerce Commission, was twelve cents per hundred pounds. This was a reduced rate, since the schedules and approved form of bill of lading provided a higher rate for class "D" freight forwarded with the carrier's common law liability unrestricted. The bill of lading provided "claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable."

No claim was presented by plaintiffs to defendant and this suit was not begun until more than four months had elapsed from the date of the delivery of the barrels.

On the hypothesis that this was an interstate shipment, the failure of plaintiffs to present their claim to defendant in the time prescribed in the shipping contract is fatal to their case. The Carmack Amendment to the Hepburn Act is construed by the Supreme Court of the United States to supersede and exclude State laws and juridical policies from the field of the liability of carriers growing out of interstate shipments. [Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148; Railway v. Harriman, 227 U.S. 657.]

The decisions of the United States courts which we are bound to follow in interstate commerce cases recognize the validity of reasonable stipulations in shipping contracts for the giving of notice of claims whether or not such agreement be supported by the consideration of a reduced rate. Such contractual limitations are regarded as a mere regulation which ...