Brown v. St. Louis & S. F. Ry. Co.

• Decision Date: 23 February 1909
• Court: Missouri Court of Appeals
• Parties: BROWN v. ST. LOUIS & S. F. RY. CO.

117 S.W. 112

135 Mo. App. 624

BROWN v. ST. LOUIS & S. F. RY. CO.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. ACTION (§ 327) — CARRIAGE OF LIVE STOCK — TORT OR CONTRACT — DELAY IN TRANSPORTATION OF CATTLE.

A complaint in an action against a carrier of live stock, which alleges that the hogs were carelessly detained for 10 hours at a way station, causing them to be late in reaching their destination, whereby they were damaged in weight and condition, so that plaintiff was forced to sell at a lower price than if they had promptly arrived, states a cause of action in tort against the carrier for breach of the common-law duty in transporting promptly, and not a cause of action for breach of the contract of shipment.

2. CARRIERS (§ 228) — CARRIAGE OF LIVE STOCK — ACTION — EVIDENCE — PRESUMPTIONS — LIMITATION OF LIABILITY.

An action against a carrier for damages due to negligent delay in transporting live stock being in tort for defendant's violation of its common-law duty and not on the contract of shipment, the plaintiff makes out a prima facie case by proving the delay and consequent loss, and the burden is on the defendant to show nonperformance of a stipulation in the bill of lading requiring notice of claim for damages as a part of its defense.

Appeal from Circuit Court, Stoddard County; Jas. L. Fort, Judge.

Action by Lem Brown against the St. Louis & San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. Orchard, for appellant. N. A. Mozley, for respondent.

GOODE, J.

The facts of this case are like those of Clubb v. Railroad (Mo. App.) 117 S. W. 110, as regards the contention that plaintiff cannot maintain the action because the bill of lading was issued to his agent and in the latter's name. Complaint was filed before a justice of the peace asking damages due to defendant's negligent delay in carrying hogs from the station of Advance, in Stoddard county, Mo., to the National stockyards in East St. Louis, Ill. It is averred the hogs were carelessly detained for 10 hours at a way station, causing them to be late in arriving at destination, whereby they were damaged in weight and condition, and rendered less salable, in consequence of which plaintiff was forced to sell at a lower price than they would have brought if carried through in the usual time. The evidence for plaintiff proved the delay and consequent damage, and in defense the company relied on noncompliance with a clause in the bill of lading providing, as a condition precedent to any claim for damages due to delay, the shipper should give notice in writing of the claim to some general officer, or station agent of the company, or the agent at destination before the stock was mingled with other stock and within one day after arrival, so the claim might be fully investigated; further, that failure fully to comply with this provision should be a bar to the recovery of any claim for damages. The record shows nothing whatever about whether or not notice of claim for damages was given in due time. Defenda...