Bradford v. McAdoo
| Decision Date | 26 January 1920 |
| Citation | 219 S.W. 92,202 Mo.App. 412 |
| Parties | W. E. BRADFORD, Respondent, v. WILLIAM G. McADOO, Director General, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Boone Circuit Court.--Hon. David H. Harris, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
E. C Anderson, Don C. Carter for respondent.
McBaine Clark & Rollins for appellant.
Plaintiff was the owner of twenty-four heads of valuable live stock consisting of stallions, bulls, jacks and jennetts which he desired to ship from Columbia, Missouri, to Fayette, Mississippi. Defendant was director general of railways and as such in charge of the Wabash Railway, a common carrier. Plaintiff shipped the stock from Columbia to Fayette by the usual form of written contract or bill of lading at a freight rate agreed upon therein, the Wabash being the initial and the Illinois Central the destination carrier. More than one-half of this stock became sick and died from exposure and diseases contracted on the way. Plaintiff claims that this disaster was the result of defendant's breach of his contract and brought this action to recover damages. A motion to strike out parts of defendant's answer was filed which we need not set out or specifically notice since the points arising thereon are hereinafter disposed of. Plaintiff prevailed in the trial court.
According to plaintiff's claim (made known to defendants agent at Columbia) the East St. Louis Illinois Stock Yards were infected with certain contagious and highly fatal diseases which were liable to be taken by stock put into the pens in such yards. East St. Louis was only sixteen hours run from Columbia and as it was the point of transfer from the Wabash railway to the Illinois Central railroad, plaintiff feared the stock would be unloaded at that place and exposed to these deadly diseases, and undertook to provide against it through what is known as a "thirty-six hour release," authorized by the interstate commerce law, which law made it the duty of interstate carriers of live stock not to confine such stock in cars for a longer period than twenty-eight hours before unloading for rest and feed, unless requested by the owner, in which event the period could be extended to thirty-six hours. Plaintiff made such request in writing and it was incorporated in the contract of shipment and thus secured himself against an unloading sooner than twenty-eight hours by extending the time to some period between twenty-eight and thirty-six hours, and thus placing his cattle beyond the reach of the infected yards at East St. Louis.
The breach of contract charged is that in violation of such provision, defendant unloaded the stock at East St. Louis after being loaded only about sixteen hours and exposed them, unprotected to highly inclement weather whereby they became infected with some of the diseases aforesaid with the consequences we have stated.
Plaintiff alleged in his petition that the "expression in the contract, 'thirty-six hours release' had a well known, usual, customary and defined meaning among stockmen . . . and always meant that the live stock then being shipped by virtue of said contract or bill of lading having said clause or expression written into it, or attached thereto, would not be released or unloaded within thirty-six hours from the time the same was loaded at the starting point," and that plaintiff would not have shipped if he had not been given that privilege. We think this not the meaning of the release clause, and besides, there was no proof of the allegation and hence plaintiff failed to establish the particular matter upon which he chose to base his case, for which the judgment must be reversed and the cause remanded.
In view of a retrial it will be necessary that we state our construction of the contract.
The federal statute on the subject of unloading stock referred to above, reads that no interstate carrier of live stock "shall confine the same in cars . . . for a period longer than twenty-eight consecutive hours without unloading the same in a humane manner into properly equipped pens for rest, water and feeding for a period of at least five consecutive hours, unless prevented by storm, or by other accidental or unavoidable causes which cannot be anticipated or avoided by diligence and foresight; Provided that upon written request of the owner . . . the time of confinement may be extended to thirty-six hours, . . ." [3 U.S. Stat. Annotated, 373.]
Our view is that the proviso does not mean that the extension should be precisely thirty-six hours, as alleged by plaintiff, it means not longer than that time.
It is our view that the interpretation of the statutory expression that upon request of the shipper "the time of confinement may be extended to thirty-six hours," should be influenced by the wording of the preceding limitation. "That no railroad . . . over which cattle or other animals shall be conveyed . . . shall confine the same in cars . . . for a period longer than twenty-eight consecutive hours, without unloading," etc. The reading is not just twenty-eight hours, but not "longer" than that time. So that the extension clause would be construed as though it read "the time of confinement may be extended to a period not longer than thirty-six hours." The meaning of the two clauses only differing as to the maximum length of time of confinement; and when we consider that plaintiff, in order to escape contagion for his stock, desired...
To continue reading
Request your trial