O'Briant v. Pryor

• Decision Date: 21 May 1917
• Docket Number: No. 12234.,12234.
• Citation: 195 S.W. 759
• Parties: O'BRIANT v. PRYOR et al.
• Court: Missouri Court of Appeals

195 S.W. 759

O'BRIANT v. PRYOR et al.

No. 12234.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Appeal from Circuit Court, Schuyler County; N. M. Pettingill, Judge.

Action by Irvin O'Briant against E. B. Pryor and others. Judgment for plaintiff, and defendants appeal. Reversed.

J. L. Minnis and N. S. Brown, both of St. Louis, and Higbee & Mills, of Lancaster, for appellants. Mills & Mills, of Kirksville, for respondent.

ELLISON, P. J.

Plaintiff shipped 33 head of cows and 7 calves from Athens, Tenn., to Glenwood, Mo. The shipment was made over the Louisville & Nashville Railroad from Athens to East St. Louis, Ill., and from the latter place to Glenwood over the defendant road. He brought this action for damages, and recovered judgment in the trial court for $370.

The shipment was interstate and consequently is governed by the interstate commerce law, as interpreted by the federal courts. There was evidence tending to show that the cattle were in good condition when shipped, that 3 or 4 of them died en route, and the remainder arrived at Glenwood in bad condition. There was also evidence tending to show the extent of plaintiff's damage.

There was a written contract of shipment, which provided, among other things, that he would give written notice of any claim for loss or injury to the agent of the railroad company "before said animals are removed from the place of destination or from place of delivery of the same to said shipper, and before said animals are mingled with other animals." This notice was not given until seven days after the delivery to plaintiff at destination. The provision as to notice is rigidly enforced by the federal courts, nor is it allowed to be waived by the company. Georgia, Fla. & Ala. Ry. Co. v. Blish Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948; Kemper Mill Co. v. Railroad, 193 Mo. App. 466, 186 S. W. 8; Banaka v. Railroad, 193 Mo. App. 345, 186 S. W. 7; Donoho v. Railroad, 193 Mo. App. 610, 187 S. W. 141.

But it is claimed that the local agent saw the cattle when they arrived and knew of their bad condition. We have decided in an opinion by Trimble, J., that such knowledge will not dispense with the notice. Johnson v. Railroad, 187 S. W. 282. So the same answer could be returned to the suggestion that there was evidence tending to show that the agent next day after delivery promised to make a "bad order" report to the company, and that he did so.

There is also another ground in the way of plaintiff's maintaining this action, and defendant duly interposed it at the trial. It appears that plaintiff first brought his action on account of the shipment complained of against the initial carrier, the Louisville & Nashville road, in which he pleaded the same contract and negligence. He alleged in his petition in that cause that his contract of shipment was that the Louisville & Nashville company contracted at Athens, Tenn., to ship 33 cows and 7 calves from that place to Glenwood, Mo.; that it thereby became the duty of that company to carry safely and without delay to Glenwood and then deliver to plaintiff in good condition. It is then alleged that the cattle were not delivered at destination until the 25th of May, when they should have been delivered on the 21st of that month, and that by reason of such negligence 3 cows and 1 calf died, and that by reason of the careless and negligent manner in which the cattle were transported and the long delay "the remainder of the said cattle were...