Cudahy Packing Co. v. Chicago & N. W. Ry. Co.
| Decision Date | 28 January 1918 |
| Docket Number | No. 12496.,12496. |
| Citation | 201 S.W. 598 |
| Parties | CUDAHY PACKING CO. v. CHICAGO & N. W. RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.
"Not to be officially published."
Action by the Cudahy Packing Company against the Chicago & Northwestern Railway Company. Defendant's motion for new trial after verdict for plaintiff was sustained, and plaintiff appeals. Affirmed.
New, Miller, Camack & Winger, P. E. Reeder, and John Taylor, all of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.
This case was submitted along with, and is a companion of, the case of Cudahy Packing Co. v. Chicago & Northwestern Ry. Co., 201 S. W. 596, No. 12495, decided at this sitting, but not yet officially reported. In the present case the petition was in three counts, covering three different interstate shipments made by the plaintiff, and a verdict was obtained by it on each of said counts. The trial court sustained defendant's motion for new trial, giving the same reasons stated in the other case.
As in the other case, the main defense herein is that the notices of claim for loss or damage were not given within the four months required by the bills of lading, the terms of which bills being the same as in the other case. The present case, like the other, was submitted to the jury on the theory that notice of loss had been waived. However, plaintiff, on appeal, raises similar questions to those in case No. 12495, which as stated in said opinion, are not within the theory on which the case was submitted.
The suggestion that even if our decision should be adverse to plaintiff on the first and second counts nevertheless we should reverse the judgment as to the third count, on the ground that plaintiff's letter to defendant's agent constituted such notice, cannot be given effect. This would be deciding the case on appeal upon the theory that the four months clause had been complied with, which is in direct opposition to the theory on which the case was based, both in the pleading and in the submission. How can we say that, if the case had been tried on the theory that said letter was a compliance with the four months clause, the defendant would not or could not have introduced testimony showing that, by reason of the facts and circumstances, it did not constitute compliance, even though such letter might otherwise be deemed sufficient? Again, were we to hold that...
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