Cincinnati, N.O. & T.P. Ry. Co. v. Luke

• Decision Date: 20 April 1916
• Citation: 184 S.W. 1132,169 Ky. 560
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. LUKE.
• Court: Kentucky Court of Appeals

184 S.W. 1132

169 Ky. 560

CINCINNATI, N. O. & T. P. RY. CO. v. LUKE.

Court of Appeals of Kentucky.

April 20, 1916

Appeal from Circuit Court, Scott County.

Suit by J. L. Luke against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff defendant appeals. Affirmed.

J Craig Bradley, of Georgetown, for appellant.

L. F Sinclair, of Georgetown, for appellee.

CARROLL J.

The appellee brought this suit against the appellant company to recover damages growing out of its failure to stop a shipment of cattle at Cincinnati, Ohio. The cattle, as claimed by appellee, were shipped from Georgetown, Ky. to Chicago, Ill with the privilege to the shipper of taking them off at Cincinnati, Ohio, through which place they would pass on the journey from Georgetown to Chicago, for the purpose of selling them, if he desired to do so. But the railroad company shipped the cattle through from Georgetown to Chicago without stopping them in Cincinnati in accordance with the contract and the direction of the shipper; and it is the difference between the Cincinnati market and the Chicago market, as well as the expense attending the shipment of the cattle from Cincinnati to Chicago, that the appellee sought to and did recover in this action. Two grounds are relied on for reversal.

The bill of lading, which manifested the contract between the shipper and the railroad company, stipulated, in clause 13, that:

"No claims for damages which may accrue to said shipper under this contract shall be allowed or paid by said carrier, or claimed, or sued for in any court by said shipper, unless said shipper gives prompt notice of said damages to the nearest agent of said carrier, thereby enabling said carrier to make an inspection of the stock alleged to be damaged, and, unless claim for such loss or damage shall be made in writing and verified by an affidavit of said shipper, or his agent, and filed with the freight claim department of said carrier in the city of Cincinnati, Ohio, within five days from the time said stock is removed from said car or cars."

And the trial court sustained a demurrer to an answer pleading and relying on this clause in the contract and the failure of the appellee to give the notice therein specified as a bar to the action.

It is well settled that a reasonable stipulation in reference to presenting a claim for damages in a contract for carriage is valid and enforceable, and that the shipper must show compliance with its terms before he can successfully maintain an action against the carrier to recover the character of damages contemplated by the condition. Howard & Callahan v. Illinois Central R. R. Co., 161 Ky. 783, 171 S.W. 442; Armstrong v. Illinois Central R. R. Co., 162 Ky. 539, 172 S.W. 947; Adams Express Co. v. Cook, 162 Ky.

592, 172 S.W. 1096; M., K. & T. Ry. Co. v. Harriman Bros., 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257.

The rule thus being that a condition such as we have described in a contract of shipment is valid, the question arises: Did the clause in the contract relied on embrace a claim for damages such as was asserted in this case? We think not. Under a fair construction of this clause in the contract the shipper is only required to give the notice provided for when he is seeking to recover damages on account of some physical injury or loss suffered by the live stock in course of transportation, or while it is in the custody or under the control of the carrier, and it does not apply to or include a claim for damages such as was asserted in this case. The appellee, as shipper, did not seek to recover damages for any injury, physical or otherwise, sustained by the stock. His claim was based on the ground that the railroad company committed a breach of its contract of carriage in refusing to stop the cattle at Cincinnati, Ohio, for sale. The other ground relied on for reversal is the failure of the trial court to order a directed verdict in favor of the railroad company. In order to set forth the basis of this contention so that it may be clearly understood, it should be stated that the appellee in his petition alleged that in the contract of carriage the railroad company agreed to carry the cattle to Chicago, Ill., with the privilege on his part of stopping them for sale at Cincinnati, Ohio, and that it refused to stop the cattle at Cincinnati, to his damage in the sum claimed. In its answer, after setting up the interstate nature of the shipment and that it...