Blair-Baker Horse Co. v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 03 December 1917
• Docket Number: No. 12574.,12574.
• Citation: 200 S.W. 109
• Parties: BLAIR-BAKER HORSE CO. v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Court of Appeals

200 S.W. 109

BLAIR-BAKER HORSE CO. v. ATCHISON, T. & S. F. RY. CO.

No. 12574.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Rehearing Denied January 28, 1918.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by the Blair-Baker Horse Company against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

George Mersereau and Thomas R. Morrow, both of Kansas City, and Culver & Phillip, of St. Joseph, for appellant. John E. Dolman and A. Leonard Guitar, both of St. Joseph, for respondent.

TRIMBLE, J.

Plaintiff brought suit under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]) against defendant as initial carrier for damages to a carload of horses on account of injuries received while in transit in an interstate shipment. The case was submitted to the court sitting as a jury, and, judgment being entered for plaintiff, defendant appealed.

A paragraph in the shipping contract provided that no action for the recovery of any damages should be sustained unless brought within six months next after the loss occurred, and that the failure to institute suit within that time should be conclusive evidence against the validity of the claim and a complete bar to a suit therefor. A further provision required the shipper, as a condition precedent to its right to recover damages, to give notice in writing of its claim to the defendant or to the terminal carrier before the stock was removed from the place of destination or delivery, and stipulated that a failure to give such written notice should be a complete bar to the recovery of any damages.

These provisions were pleaded as defenses. In its reply, plaintiff pleaded that the defense of failure to bring suit within the time specified had been waived, and that defendant by its conduct had estopped itself from relying upon or enforcing that provision. And as to the defense that no written notice had been given, the reply pleaded a want of consideration for such provision and that the shipper had verbally notified the agent at destination, and that, by its conduct, defendant had waived the giving of such notice.

Concededly, the suit was not brought within six months of the date of the loss, nor was any written notice of plaintiff's claim given until nearly a month after the injury, and, of course, long after the stock had been removed from the place of destination.

The judgment for plaintiff was rendered upon the theory that the provision requiring suit to be brought within six months was valid, but that the defendant, by its acts and conduct, had waived the same and was estopped from enforcing or claiming the benefit thereof; that, so far as the provision relating to notice was concerned, plaintiff had substantially complied with it, and defendant had estopped itself from claiming the benefit of it.

It is well established that, in view of the purpose of the commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379) to absolutely uproot and destroy discriminations in interstate commerce, no matter how conceived or by what plan, scheme, or device they may be sought to be accomplished, it is beyond the power of the carrier to waive a valid provision of the contract constituting a defense. Phillips v. Grand Trunk Ry., 236 U. S. 662, 667, 35 Sup. Ct. 444, 59 L. Ed. 774; Banaka v. Missouri Pacific Ry. Co., 193 Mo. App. 345, 186 S. W. 7; Kemper Mill Co. v. Missouri Pacific R. Co., 193 Mo. App. 466, 186 S. W. 8; Missouri, Kansas, etc., R. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Donoho v. Missouri Pacific Ry. Co., 187 S. W. 141; Thompson v. Atchison, Topeka, etc., R. Co., 185 S. W. 1145.

But respondent contends that the rule announced by the above authorities goes no further than to forbid the carrier from waiving such provision, or estopping itself from claiming the benefit of it, after the defense afforded by the contract has become complete: but that, if the acts constituting waiver or estoppel are done by the carrier before the time limit has elapsed, then the rule is otherwise, and that, in such case, if the carrier's conduct is such as to constitute waiver or estoppel, the claimant shipper can thus avoid the effect of such defensive provisions and recover damages where otherwise he could not do so. But if the reason of the rule, namely, the purpose of the commerce act to "nullify any device whereby the carrier may practice favoritism" between shippers, be kept steadily in mind, it will be seen that the rule must apply as well before the defensive terms of the contract had been violated as afterward. For if...