Clegg v. St. Louis & S. F. R. Co.

• Decision Date: 26 February 1913
• Docket Number: 3,857.
• Citation: 203 F. 971
• Parties: CLEGG v. ST. LOUIS & S.F.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

203 F. 971

CLEGG v. ST. LOUIS & S.F.R. CO.

No. 3,857.

United States Court of Appeals, Eighth Circuit.

February 26, 1913

H. B Martin, Charles E. Bush, and John Y. Murry, all of Tulsa Okl., for plaintiff in error.

W. F Evans, of St. Louis, Mo., and R. A. Kleinschmidt and J. H Grant, both of Oklahoma City, Okl., for defendant in error.

Before SANBORN, Circuit Judge, and Wm. H. MUNGER and TRIEBER, District judges.

Wm. H MUNGER, District Judge.

This action was brought to recover damages by reason of the delay of the defendant in delivering at the National Stockyards in the state of Illinois certain cattle shipped by the plaintiff over the railroad of defendant from the station at Drace, in the county of Noble, Okl. Plaintiff, in his petition, set forth 20 causes of action. The first cause of action alleged:

'That on the 29th day of July, 1907, at the defendant's station of Drace, in Noble county, Oklahoma Territory, the plaintiff delivered to the defendant, as a common carrier as aforesaid, and the defendant then and there received from the plaintiff, one hundred and eleven (111) head of fine fat beef cattle, of the value of fifty ($50.00) dollars per head; and the defendant thereupon agreed that it would safely, securely, and expeditiously carry and convey from said station of Drace to the National Stockyards, in the state of Illinois, said cattle, and deliver the same to the plaintiff's agents at the said National Stockyards in time to be marketed at said last-named place on the 31st day of July, 1907. All for reasonable hire and reward to said defendant in that behalf paid and agreed to be paid by plaintiff. That the defendant by the exercise of reasonable diligence and care could have delivered said cattle to this plaintiff at the said National Stockyards on the said 31st day of July, 1907, but instead of so doing the defendant negligently delayed said shipment until the 1st day of August, 1907. That by reason of said delay in said shipment said cattle were caused to shrink. * * * That by reason of the premises plaintiff was damaged in the sum of two hundred and twenty-two and 86/100 ($222.86) dollars.'

It was stipulated by the parties that the other 19 causes of action were similar and need not be printed in the record, but that the judgment, based upon the pleadings relative to the first cause of action, should govern as to the remaining 19 causes of action.

The answer of the defendant set up that the shipment was under and by virtue of a certain printed and written contract, which it set forth, and which contained, among other things, a provision that the shipment in question was under a limited liability contract accepted by plaintiff in consideration of receiving a lower rate of freight. The eleventh clause of the contract provided:

'That as a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivering of such stock at destination, to the end that such claim shall be fully and fairly investigated, and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims.'

The contract further...