Bushnell v. Wabash R. Co.

• Decision Date: 04 June 1906
• Citation: 118 Mo. App. 618,94 S.W. 1001
• Parties: BUSHNELL v. WABASH R. CO.
• Court: Missouri Court of Appeals

94 S.W. 1001

118 Mo. App. 618

BUSHNELL v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. CARRIERS—CARRIAGE OF LIVE STOCK—ACTION —PARTIES—ACTION BY OWNER.

Under Rev. St. 1899, § 540, requiring an action to be prosecuted in the name of the real party in interest, the owner of cattle might maintain an action against a carrier for delay in transporting them, though the shipments were made in the names of other persons.

2. SAME — CONNECTING CARRIERS — THROUGH TRANSPORTATION.

Where a carrier contracts for a through shipment, it is liable for the negligence of connecting lines, irrespective of a provision against such liability in the contract of shipment.

3. SAME—CARRIAGE OF LIVE STOCK—LIMITATION OF LIABILITY—NEGLIGENCE.

A provision in a contract for the shipment of cattle exempting the carrier from liability on account of delays is enforceable only to the extent of delays not caused by its own negligence.

4. SAME—ACTION—BURDEN OF PROOF.

In an action against a carrier for delay in the transportation of cattle, where the contract of shipment exempted the carrier from liability on account of delays, the burden was on plaintiff to show that the unusual and injurious delays were the result of negligence, and not such as were unavoidable.

5. SAME—QUESTION FOR JURY.

In an action against a carrier for delay in the transportation of cattle, held, that the question whether the delays arose from negligence was one for the jury.

6. SAME—LIMITATION OF LIABILITY.

Though a contract for the shipment of cattle provides that in consideration of a reduced rate the shipper will accept as full compensation for any loss or damage occasioned by delay the amount expended by him in the purchase of food and water, a shipper is entitled to compensation for actual damages sustained as the direct result of the carrier's negligence, within the sum at which the animals were valued in the contract.

7. SAME—REQUIREMENT OF NOTICE OF LOSS— WAIVER OF OBJECTIONS.

Where a contract of shipment required a verified claim for any damage to be made within a specified time, and the carrier retained an unverified claim without objection during the period fixed for its presentation, and investigated the merits of the claim, any objection to the sufficiency of the claim was waived.

Appeal from Circuit Court, Chariton County; Jno. P. Butler, Judge.

Action by J. B. Bushnell against the Wabash Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

George S. Grover, for appellant. J. A. Collet, for respondent.

JOHNSON, J.

Action against a common carrier to recover damages resulting from negligent delay in the transportation of live stock to market. The petition is in two counts. In the first, it is alleged that on April 7, 1904, at 7 o'clock p. m., plaintiff delivered to defendant at Keytesville, for shipment to the National Stockyards at East St. Louis, Ill., 62 head of cattle and 92 head of hogs, the property of plaintiff; that the stock was loaded in cars and ready to go forward at the hour mentioned, and defendant accepted the shipment and agreed for hire to carry the stock to its destination within a reasonable time; that 11 hours was a reasonable time, but defendant carelessly and negligently delayed the stock in transportation and consumed 19½ hours from the beginning to the end thereof; that, had due care been observed, the stock would have arrived at the stockyards early in the morning of the following day, in time for the early market, but, as it was, that day's market was closed before its arrival; that the value of such stock declined on the next day's market, and plaintiff suffered loss from that cause, as well as from shrinkage in weight occasioned by the unusual delay and expense incurred in feeding and caring for the stock during the time plaintiff was compelled to hold it over. The amount of the damage stated was $131.72. In the second count plaintiff seeks to recover damages that followed a like delay in the shipment of 234 head of hogs, which defendant received at Keytesville on May 31, 1904, at 7 o'clock p. m. for delivery at the National Stockyards in East St. Louis. The amount of the damage claimed in this count is $97.16. In the answer, defendant averred that the two shipments were made under the provisions of five written contracts. In the first the hogs were shipped under a contract signed by plaintiff. Twenty-two head of the cattle were forwarded under a contract also signed by plaintiff and the remainder of the cattle under a contract signed by Alex Guthridge as shipper. In the second shipment 117 head of the hogs were shipped under a contract signed by plaintiff, and the remaining 117 head under one signed by Steve Bushnell, plaintiff's father. These five instruments are identical in form and contain a number of limitations upon defendant's common-law liability, all of which are based upon the recited consideration of a reduced rate. Several of them are employed in the answer to support defenses interposed and such will receive consideration in the ensuing discussion. Defendant pleaded and offered proof tending to show compliance with the regulations of the interstate commerce law. Plaintiff made no effort to show that the rates fixed in the contracts were not in fact reduced rates, and the case was tried by both parties and the court on the assumption that the contracts were valid and bound the parties to the extent permitted by law. In our treatment of the case, we will take the same position. Plaintiff's reply was a general denial. At the close of the evidence, defendant requested an instruction in the nature of a demurrer to the evidence, which was refused. The issues were submitted to the jury, and a single verdict was returned on both counts in the sum of $228.88. Judgment was entered on this verdict, and defendant appealed.

Defendant argues that, as the judgment is indivisible and includes damages sustained under each of five separate shipments, it cannot stand because two of the shipments were made in the names of persons other than plaintiff; that, with respect to the stock forwarded under the Guthridge and Steve Bushnell contracts, defendant sustained no contractual relation to plaintiff, did not know that plaintiff claimed to be the owner of that property, and, as no assignments of these contracts or of the causes of action arising under them were made to plaintiff, he cannot recover, either in virtue of his actual ownership of the property or as trustee of an express trust. It is not shown that defendant knew that plaintiff was in fact the owner of the stock shipped in the names of these other persons; but the fact of his ownership at the time of shipment is established by uncontradicted evidence, and in the circumstances disclosed entitles him to prosecute the action in his own name, without an assignment of the contracts or causes of action dependent upon them. Section 540, Rev. St. 1899, requires that "every action shall be prosecuted in the name of the real party in interest." Plaintiff alone sustained any damage in consequence of defendant's breach of contract. The nominal shippers had neither title to nor interest in the property. The contracts must be held to have been made for the sole benefit of plaintiff as shipper, and it is well settled "that a contract between two parties upon a valid consideration may be enforced by a third party when entered into for his benefit, though such third party be not named in the contract." St. Louis, to Use, v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 Am. St. Rep. 695; Devers v. Howard, 144 Mo. 671, 46 S. W. 625. In such case the party for whose benefit the contract was made may prosecute an action thereon in his own name. Summers v. Railway Co. (Mo. App.) 79 S. W. 481; Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchinson, 47 Mo. 237; Rogers v. Gosnell, 51 Mo. 466; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198. And it is immaterial that the contract has not been formally assigned to him. His right to sue is not derived by assignment or transfer from the nominal party, but springs from his own beneficial interest in the contract itself.

The eastern terminus of defendant's line is at Luther, on the west side of the Mississippi river. The stockyards are across the river, some eight or ten miles distant, and stock for that place is delivered by defendant to a connecting carrier at Luther. The contracts in effect provide that in consideration of the reduced rate the liability of defendant does not include responsibility for the acts of its connecting carrier. It is claimed the evidence shows that, while delays occurred in both cases on the line of defendant, the shipments reached Luther and were delivered to the connecting carrier in time for the stock to have been delivered by the latter carrier at the stockyards for the best of the markets to which the respective shipments were made; in other words, that the negligent delays that produced the injuries resulted from the acts of the connecting carrier. Defendant says that the contracts exempt it from liability for the consequences of such acts. The contracts do not state the destination of the shipments, but each begins with an offer made by the shipper, of which the following is an example: "To...