Bennett v. Chicago, Rock Island and Pacific Railroad Company
| Decision Date | 07 November 1910 |
| Citation | 131 S.W. 770,151 Mo.App. 293 |
| Parties | JAMES L. BENNETT, Respondent, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 151 Mo.App. 293 at 299.
Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.
AFFIRMED CONDITIONALLY.
Paul E Walker and E. C. Hall for appellant.
(1) The cattle were shipped and the contract of shipment was made in the name of W. W. Silvius, as consignee, who testified that he was owner of part and was holding balance in his name to secure payment of the purchase money. The suit should have been in his name. Atchison v. Railroad, 80 Mo. 213; Harvey v. Railroad, 74 Mo. 538; Porter v Raymond, 53 N.H. 519; Clubb v. Railroad, 136 Mo.App. 1; Hickman v. Craig, 6 Mo.App. 582; 3 Ency. Pl. and Pr. 826. (2) Plaintiff's instruction on the measure of damages seems to mean that the court either declared, as a matter of law, that there was no market on the 13th, the day on which the cattle were delivered at the pens or has given the instruction when there is no evidence to support it, in this, it tells the jury to find for the difference between the market when the cattle should have arrived and when they did arrive. They should have arrived for the early market of the 13th, for instance, but arrived before the market closed on the 13th, and there is no evidence of a difference between the early and late market of that day. Perry v. Railroad, 89 Mo.App. 49; Gann v. Railroad, 72 Mo.App. 34; Wilson v. Railroad, 66 Mo.App. 388. (3) Plaintiff did not give notice to defendant of injury to the cattle within the time provided in the contract, and cannot recover for shrink or for stale appearance. Moore v. Railroad, 127 S.W. 921; Leonard v. Railroad, 54 Mo.App. 302; Dawson v. Railroad, 76 Mo. 514; McBeath v. Railroad, 20 Mo.App. 445.
Pross T. Cross for respondent.
(1) The cattle in controversy were the property of plaintiff, and he was the real party in interest. This fact is clearly shown by the testimony of the witness Mr. Silvius and of the plaintiff, Mr. Bennett. Under all the evidence in this case defendant was guilty of a negligent delay, such as to make it liable in damages to plaintiff. Anderson v. Railroad, 93 Mo.App. 677; Eads v. Orcutt, 79 Mo.App. 511. (2) In the contract relied upon in this case, no rate whatever is named, but it is left blank. Therefore the provision limiting liability was without consideration and void. George v. Railroad, 214 Mo. 551; Kellerman v. Railroad, 136 Mo. 177; Richardson v. Railroad, 149 Mo. 311.
This is a suit for damages against the carrier for its failure to deliver cattle shipped to market within a reasonable time.
On the 12th day of August, 1907, the plaintiff through his agent shipped eighty-eight head of cattle to Kansas City for the purpose of selling them on the next day's market. The cattle were driven to Cameron station late in the afternoon of the day mentioned. The agent had previously made arrangements with defendant's station agent for the necessary cars for the shipment. The cattle were in defendant's pens at 7 o'clock p. m. The usual time for the shipment of live stock to Kansas City was 9 or 10 o'clock p. m. The defendant's train was in the switch yards of the company several hours before it arrived at the pens to take on the cattle, and they were not loaded until near midnight. The train carrying the cattle did not leave the station until about two o'clock. Before it reached Turney, the second station from Cameron, the engine broke down and had to be pushed in by a train that was following. At Turney the second train took up the cattle and proceeded on its journey, but was delayed at Holt and other stations on the way in order to let passenger trains pass. There was also a delay at Harlem and another at the Union Depot. The train did not cross the Missouri river until about 11 o'clock a. m., and it did not arrive at the cattle pens in time to be unloaded and the cattle taken to the pens at Kansas City until about 2 o'clock p. m.
It was shown that the business of buying and selling cattle usually closed at 3 o'clock p. m. each day. The plaintiff testified that owing to the shortness of time after the arrival of the cattle and the closing of the days' business at the pens, he did not have the opportunity to avail himself of that days market, as most of the buying and selling was over shortly after two o'clock. Plaintiff kept his cattle over and sold them on the next day's market; in the meantime there had been a decline in the price of cattle.
Plaintiff introduced evidence tending to show that owing to the delay in delivering his cattle they suffered an additional shrinkage in weight over and above the usual shrinkage had they been delivered in time; that the delay had a bad effect on their appearance which caused a depreciation in their selling price, and gave evidence of their amount of shrinkage, and the difference between the price of cattle on the day of their arrival and the next day when they were sold; and also for additional cost of their keep for one day. The cattle were not weighed before shipment. The plaintiff had just previously bought them of W. W. Silvius at a certain price per head. Their weight including two other head was estimated by the parties at 112,230 pounds. It was shown that the buyer and seller were competent by their experience to arrive at the weight of such animals, approximately by their appearance. However, the seller afterwards weighed two of the number and from their weight as a basis he came to the conclusion that the estimate made upon them was below, rather than above their true weight. The extra shrinkage was estimated at thirty pounds for each animal and for depreciation in value by reason of their stale appearance, ten cents per hundred weight. They sold at prices ranging from $ 1.75 to $ 5.85 per hundred.
The evidence was that Silvius shipped the cattle in his own name and signed the contract of shipment. But plaintiff testified that he did not authorize him to so ship them. The defendant's evidence tends to contradict that of plaintiff as to some matters, and it exhibited a written contract for the shipment and offered it in evidence but the record fails to show that it was introduced. One of the conditions in said writing is as follows: "That as a condition to claiming or recovering damages for any loss or injury to or detention of live stock, or delay in transportation thereof, covered by this contract, the second party, as soon as he discovers such loss or injury, shall promptly send notice thereof in writing," etc. It...
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