Cunningham v. Missouri Pac. R. Co.
| Decision Date | 27 March 1920 |
| Docket Number | No. 2560.,2560. |
| Citation | 219 S.W. 1003 |
| Parties | CUNNINGHAM v. MISSOURI PAC. R. CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Almon Ing, Judge.
Action by Owen Cunningham against the Missouri Pacific Railroad Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.
L. M. Henson, of Poplar Bluff, for appellant.
J. F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for respondents.
The charging part of plaintiff's petition in this case is to the effect that, being the owner of certain cattle on November 8, 1917, he delivered same to defendant railroad at National Stockyards, Ill., for transportation to Fisk, Mo.; that said railroad received same, and in consideration of the freight charges paid undertook and agreed to safely transport and deliver same to plaintiff at Fisk, Mo., in as good condition as when received; that defendant, in violation of its said agreement and of its duty as a common carrier "failed to deliver said property at Fisk, Mo., in accordance with their said agreement, and plaintiff states that three of said cattle, of the value of $50 each, were never delivered to plaintiff by the defendants, and that one head of said cattle was bruised, injured, and damaged in the sum of $25, all to plaintiff's damage in the aggregate sum of $175." The other counts of the petition are similar to this, each basing a cause of action solely on defendants' failure to transport certain stock from Illinois to Missouri and deliver same in good condition, specifying that in each instance one or more animals died or were injured in transit.
The plaintiff's evidence showed little more than these allegations of the petition, to wit: That he shipped this stock from National Stockyards, Ill., to Fisk, Mo., over defendant railroad; that, when same was delivered to him at Fisk, Mo., some of the stock had died, and, as plaintiff says, some of the cars were "short" certain stock. This shortage was noted on certain "bills" or statements furnished to plaintiff by defendants' local agent at the time the stock was delivered. There were four such "bills" or statements, each representing a carload of stock. They are all similar, and one of them reads:
"Fisk, Mo., Station, 11-9-1917
"Freight Bill No. 104
"Consignee, E. H. Blankenship
"To Missouri Pacific Railroad Co., Dr
"Full name of shipper, Landers
"32 cattle, weight 23,800, rate 16, freight, 28.56.
"Advances 2.00 paid.
"2 head short. Val. 50 per.
"George Hayman, Agent."
The consignee mentioned, E. H. Blankenship, was plaintiff's agent at Fisk, Mo., and received the stock for plaintiff. Plaintiff also showed that in addition to the stock that died in transit and were not delivered to him at Fisk, Mo., other stock was delivered In an injured and damaged condition.
The defense which the court held valid, and by reason of which it refused any recovery to plaintiff, is a provision of the bill of lading and shipping contract reading as follows:
"That the second party will notify, in writing, the nearest station agent or general officer of the carriers concerned regarding any loss or injury, from delay or otherwise, to the live stock covered by this contract; * * * that, if claim is to be presented for said loss or injury, written notice to that effect will be tiled wits the agent at the point of origin or destination within 95 days, and verified itemized claim within 125 days, after loss or injury occurred; that a failure to comply with the provisions of this section shall be a bar to recovery for such loss or injury."
It is conceded that no such written notice as is required by the shipping contract was given by plaintiff. The plaintiff's contention is that the acknowledgment in writing on the freight bills by defendants' local agent, to whom the notice could be given, of the number of animals lost and their value at the time of delivery of the stock, made such notice unnecessary and constituted a waver of same. The argument is that as the purpose of any notice is to impart knowledge, then, when one has knowledge, as did defendant in this case, no notice is necessary, and none can be required. The plaintiff will End, however, that in a good many matters, especially in reference to pending or contemplated litigation, actual knowledge does not dispense with a required notice.
It is fair to say that plaintiff does not question but that, since this is an interstate shipment governed by the Interstate Commerce Act and the federal decisions interpreting and applying that act, a provision of a shipping contract such as we have here is valid and binding. This has been so often held as no longer to be debatable. Grain Co. v. Railroad, 177 Mo. App. 194, 164 S. W. 182; Dunlap v. Railroad, 187 Mo. App. 201, 172 S. W. 1178; McElvain v. Railroad, 176 Mo. App. 379, 158 S. W. 464; Smith v. Railroad, 186 Mo. App. 401, 171 S. W. 635.
The federal decisions on which this rule is based are referred to in the cases cited and those below mentioned. By reference to these cases it will be found that provisions requiring notice of loss or damage to be given within a very short period, even one day, have been upheld and liability denied for failure to do so. This doubtless led to the amendment of 1915 prohibiting shipping contracts from fixing a shorter period than 90 days for giving notice of claims and a shorter period than 4 months for the filing of claims. See 8 U. S. Compiled Statutes, p. 9254; also volume 8, § 8604a, p. 9289. The contract provision here in question complies With these provisions.
The serious question here raised is as to whether such notice is not dispensed with under the facts here shown. The courts, as have the parties here, have discussed this as a question of waiver. We would have no difficulty in saying that common carriers could not be allowed to waive provisions of this character without opening wide the door of discrimination and favoritism. Anything that shows a willingness and intention to abandon or forego a right or privilege amounts to a waiver, and, if the carrier can waive such notice at will, it can accept the notice as sufficient at a later date or dispense with it altogether. The important question is whether or not actual...
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