Coleman v. Hines

• Decision Date: 14 January 1920
• Docket Number: No. 2595.,2595.
• Citation: 217 S.W. 602
• Parties: COLEMAN et al. v. HINES, Director General of Railroads.
• Court: Missouri Court of Appeals

217 S.W. 602

COLEMAN et al. v. HINES, Director General of Railroads.

No. 2595.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Carter County; E. P. Dorris, Judge.

Action by J. A. Coleman and another against Walker D. Hines, Director General of Railroads. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield, for appellant.

Garry H. Yount, of Van Buren, for respondents.

BRADLEY, J.

Plaintiffs sued to recover damages for an alleged breach of defendant's common-law duty as a common carrier to act with reasonable promptness in furnishing cars for shipment of stock after reasonable notice by shipper. Plaintiffs in their petition alleged that on the 6th day of August, 1918, they were desirous of shipping to the National Stockyards in Illinois two cars of cattle, and that on that date they gave notice to the agent of the St. Louis-San Francisco Railway Company at Chicopee, Mo., to furnish said cars and have them set for loading on the 10th day of August at the stock pens in Chicopee; that plaintiffs, being assured by the agent that the cars would be provided in compliance with the order, collected the cattle from the range and drove them to the stock pens at Chicopee on August 10th to be loaded and shipped to the National Stockyards. Plaintiffs further alleged that the defendant failed to furnish said cars on August 10th, and that on that date plaintiffs further requested defendant to furnish said cars on August 13th, and drove their cattle to a dry pasture awaiting shipment on the 13th; that the cars were not furnished on August 13th, and not until August 17th, when the cars arrived, and plaintiffs shipped their cattle to the National Stockyards. Plaintiffs alleged that there were 61 head of cattle, grass fed and in good condition, on August 10th, at which time they were placed in the stock pens at Chicopee, and that on account of defendant's failure to furnish cars plaintiffs were compelled to place their cattle in a dry pasture, and were forced to use dry feed for a period of seven days, and that by reason of the poor condition of the pasture and the change of feed the cattle shrank 3,000 pounds. Plaintiffs also alleged that they were forced to pay out for pasture by reason of the defendant's failure to furnish the cars the sum of $52.40, and for work and labor in hauling feed to the pasture the sum of $37.50, that the notice given by them was reasonable and sufficient, and gave defendant reasonable and sufficient time to furnish and provide cars and facilities to ship their cattle, and that the delay was unreasonable, and due to the carelessness and negligence of defendants. Plaintiffs ask damages in the sum of $314.90. The answer was as follows:

"Defendant, answering the plaintiffs' petition, alleges that the only order or request for cars made by plaintiffs to defendant is in writing and hereto attached and made a part of this answer and is dated August 17, 1918, and contains the following express agreement made by the plaintiffs: `Notice: This order is placed and accepted after due notice to and with full knowledge of the undersigned shipper that on account of the operation and control by the United States of the railway of the St. Louis-San Francisco Railway Company and conditions created and existing by, and as a result of the war, and the transportation of troops, supplies, munitions, and other war materials, said railway company is unable to furnish cars for loading at any specific time or place or in time for any particular market. Therefore, in consideration of the acceptance of this order by said St. Louis-San Francisco Railway Company (sic), its successors and assigns, from any and all claims, demands, actions, and causes of action that the undersigned or its, his, or their successors, executors, administrators, heirs, or assigns may at any time have against said railway company by reason of or on account of its failure to furnish the car or cars hereby ordered, at any specified time or place, or in time for the live stock or other freight which is intended to be transported in such car or cars to make or reach any particular market, and, in the event such cars or car shall be intended for the transportation of live stock, the undersigned does hereby further agree that the undersigned shall not and will not place such stock in the stock pen of said railway company until the agent of the said railway company with whom this order is placed or at the point from which such live stock shall be intended to be shipped shall have notified the undersigned that the car or ears for the transportation of such live stock has or have been placed at such stock pens ready for the loading of such live stock.'

"Defendant says that, owing to the demand for cars to transmit government material and supplies which under the law had the priority of right of shipment, it was unable to deliver to the plaintiffs a car or ears before it did furnish the same, and it is not liable for any alleged delay.

"Defendant, further answering, alleges that the shipment mentioned in the petition was made under a special live stock contract dated August 17, 1918, and entered into between the plaintiffs and defendant approved by tile Interstate Commerce Commission, wherein and whereby it was expressly agreed for valuable consideration: `The shipper waives and releases any and all claims or causes of...