Baird v. Denver & R.G.R. Co.

• Decision Date: 06 December 1916
• Docket Number: 2915
• Citation: 162 P. 79,49 Utah 58
• Parties: BAIRD v. DENVER & R. G. R. CO.
• Court: Utah Supreme Court

162 P. 79

49 Utah 58

BAIRD v. DENVER & R. G. R. CO.

No. 2915

Supreme Court of Utah

December 6, 1916

Appeal from District Court, Third District; Hon. A. B. Morgan Judge.

Action by James R. Baird against the Denver & Rio Grande Railroad Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Van Cott, Allison & Riter for appellant.

Weber &amp Olson for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This is an action for damages which plaintiff alleges he sustained by reason of defendant's negligence in unnecessarily and unreasonably delaying transportation of his lambs and sheep from Heber City, Utah, to Kansas City, Mo. All the lambs and sheep in question were transported on the same train, but inasmuch as they did not all belong to the plaintiff he sues as assignee upon one of the causes of action set forth in the complaint. In the first cause of action plaintiff, in substance, alleged that in September, 1913, he delivered to and the defendant received from him at Heber City, Utah, 1,078 head of lambs and sheep, which it agreed to transport to Kansas City, Mo., to Clay, Robinson & Co., the assignees; that the defendant so negligently transported said lambs and sheep that the same were delayed for more than twenty-four hours en route between said Heber City and their destination, by reason of which said lambs and sheep shrank in weight two pounds per head in excess of what the normal shrinkage would have been if they had been transported with reasonable diligence and dispatch; that by reason of said delay said lambs and sheep were delivered at their destination twenty-four hours later than they should have been, and that by reason of the decline of the market price of said lambs and sheep plaintiff lost twenty-five cents per hundredweight, and that by reason of said delay plaintiff was also required to incur extra expense in procuring food and in feeding said lambs and sheep while in transit; that by reason of all of which plaintiff was damaged in the sum of $ 154.25 on account of excess shrinkage, $ 332.49 on account of the decline in price, and $ 7.60 for the purchase of additional food. The matters constituting the defendant's negligence were fully set forth in the complaint. The second cause of action was practically a repetition of the first one, except that there were 2,000 lambs on which the alleged loss from excessive shrinkage was alleged to have been $ 288.41, the loss by reason of the decline in the market price, $ 335.78, and for extra expense and food, $ 10.30. It was also alleged that the second cause of action was assigned to the plaintiff by one Phillips. The defendant in its answer denied the alleged negligence, pleaded negligence on the part of the plaintiff in caring for said lambs and sheep while in transit which caused said alleged excessive shrinkage, and also set forth the contract of shipment as a defense, to which we shall hereafter refer more in detail. A trial to a jury resulted in a verdict for the plaintiff on the first cause of action for the sum of $ 186.41, and on the second for the sum of $ 409.91. Judgment was duly entered on the verdict and the defendant appeals.

The defendant procured the shipping contract, under which the lambs and sheep in question were received and transported by it, in evidence, and the portions upon which it more particularly relies are as follows:

"Said company agrees to transport for said shipper over its lines only from its said station at Heber, Utah, to its said station at Pueblo, Colorado, four cars * * * of sheep consigned to Clay, Robinson & Co., Kansas City, Missouri, at its limited liability rate as shown by its published tariffs."

Further that:

"The rate given under this contract is based on a limited liability and is thirty-three and one-third (33 1-3) per cent. less than regular tariff rates where shipment is made at the company's risk."

It was further provided that:

"In the event of loss or damage from any cause for which the company may be liable, claim shall not and will not be made for any amount in excess of the actual value at the time and place of shipment of animals destroyed, damaged or lost, nor in any event in excess of * * * three dollars per head."

Another provision specially relied on reads as follows:

"10. That, in order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and evidence thereof preserved, said shipper agrees that as a condition precedent to his right to recover any damages for loss or death of or injury to said stock during transportation, or at any place where the same may be loaded or unloaded, or any damage caused by delay or otherwise, in the transportation thereof, or damage to said shipper caused by decline in market taking place during delay in transportation, or by reason of loss of contract of sale due to such delay, the shipper, or his agent in charge of the stock, when final delivery is made on the company's lines, shall and will give notice in writing of such loss or damage to some officer of the company or to the station agent of the company at the station nearest to the place where said stock is delivered, before such stock shall have been removed from the place of delivery and before such stock shall have been slaughtered or commingled with other stock, and said shipper further agrees that he will not remove said stock from the place of delivery until the expiration of three (3) hours from the service of notice aforesaid; and where final delivery of said stock by the company shall not be made on the company's lines to the shipper or consignee, but to a connecting carrier, such written notice of loss or damage as aforesaid shall be given to some officer of the company or to the station agent at the last station on the company's lines reached by the shipment and before such shipment is removed from the station where delivery is made to such connecting carrier. No claim for any damages, or for loss or death of or injury to the live stock covered by this contract, however occurring, or for damage to said shipper, caused by decline in market taking place during delay in transportation, or by reason of loss of contract of sale due to such delay, shall be allowed or recovered, unless written claim therefor shall be presented to the freight claim agent of the company at Denver, Colorado, within thirty (30) days after the shipment shall have reached final destination. A failure to comply in every respect with the terms of this section shall be a complete bar to any recovery of any and all damages, and none of the provisions or conditions of this section shall be waived except by a general officer of the company, and by him only in writing."

It was also shown that the negligent acts complained of, and which caused the delay, occurred on defendant's railroad between Tennessee Pass and Pueblo Station, Colo.; that the lambs and sheep were transferred by the defendant to the Missouri Pacific Railroad Company at Pueblo, Colo., and that said company transported them to Kansas City, Mo., where by reason of the delay between the stations aforesaid, the sheep arrived twenty-four hours later than they should have done. It was also shown without dispute that the plaintiff did not comply with the provisions of the shipping contract, in that he did not serve the notice therein provided for before the lambs and sheep were transferred to the Missouri Pacific Railroad Company at Pueblo, Colo., and that he did not serve such notice on any one at any time or at any place. The plaintiff did, however, file a claim for damages within the thirty-day period provided for in the contract of shipment, but the defendant insisted at the trial, and now insists, that the claim as presented was insufficient for the reason that in giving the date of the shipment the year 1907 was given, instead of 1913, the year when the shipment was actually made. It was also made to appear that the lambs and sheep were all sold at a price in excess of three dollars per head. When the plaintiff rested the defendant interposed a motion for a nonsuit in which it, among other things, is contended that the plaintiff was not entitled to recover for the reasons: (1) Because he did not serve the notice required by the contract of shipment, (2) because he had not presented his claim within the time provided in said contract, and (3) because he had realized more than three dollars per head for all of the lambs and sheep involved in this case, and for that reason he cannot recover anything from the defendant in view of the valuation clause we have hereinbefore set forth. The district court overruled the motion. At the close of all the evidence defendant's counsel also moved for a directed verdict, which motion was denied. Counsel now insist that the rulings constituted prejudicial error."

We will consider the foregoing grounds of the motion for a nonsuit in the inverse order in which they are stated above.

We can perceive no good reason for sustaining the third ground stated above. The claim made by the plaintiff is not in excess of the amount or value stated in the contract of shipment, but in fact is much less. Indeed, the plaintiff claimed only a small fraction of the amount stated in the contract of shipment. Defendant's counsel have referred us to no case wherein it was held that the carrier is not liable for the actual damages, provided the amount claimed per head is less than the valuation limited in the contract of shipment. All that is decided in the cases to which we are referred (Missouri, K. & T. Co. v Harriman, 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690, and Cleveland, etc., Ry. Co. v. Dettlebach, 239 U.S. 588, 36 S.Ct. 177, 60 L.Ed. 453) is that, where...