Ed. thee v. Wabash Railway Company
| Decision Date | 04 April 1921 |
| Citation | 233 S.W. 959,208 Mo.App. 200 |
| Parties | ED. THEE, et al., Respondents, v. WABASH RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Boone County.--Hon. D. H. Harris Judge.
AFFIRMED.
Judgment affirmed.
N. T Gentry for respondents.
McBaine Clark & Rollins for appellant.
This is an action in damages against the Wabash Railway Company based upon the violation of an oral contract made October 14, 1917, by the station agent of the defendant company at Columbia, Missouri, with plaintiffs, whereby said agent agreed to have three empty cattle cars at said station on the following day, ready for plaintiffs' use in the shipment of 56 head of fat cattle.
The petition alleges that in pursuance of said contract the plaintiffs drove their said cattle to Columbia and placed them in defendant's stock pens for shipment on October 15, 1917; that the defendant failed to have any of said cars at Columbia on that day, and failed to provide plaintiffs with the three cars in which to ship their cattle according to contract; that said cars not being furnished, plaintiffs were compelled to keep and feed said cattle until October 16th; that owing to said delay said cattle lost flesh and shrunk in weight more than they would have done had they not been delayed; that said cattle depreciated in value and were unsalable and stale on the market, and the market price of such cattle declined and plaintiffs were compelled to pay out and expend sums of money for extra feed for said cattle; wherefore plaintiffs sued for the sum of $ 1179.75.
Defendant's answer was, first, a general denial and, second, defendant states that this was an interstate shipment of cattle, being from Columbia, Missouri, to Chicago, Illinois, with the privilege of the National Stock Yards, Illinois; that said shipment was made under the provisions of a written contract among other terms of which was "section 8" which provided: "The parties of the second part hereto agree to assume all risk of injury or damage to, or escape of, the live stock aforesaid, which may happen to it while in the stock yards of said party of the first part, awaiting shipment at any point on any line of railroad owned or operated by the party of the first part, and in consideration of said rate herein named, shipper hereby releases and waives any and all cause or causes of action that may have accrued to him by reason of any written or verbal contract prior to the execution of this contract."
And as a further defense, "section 10" of said contract was pleaded, as follows: "In the consideration of the rate aforesaid, it is further agreed, that no claim for damages which may accrue to the party of the second part under this contract shall be allowed or paid by the party of the first part, or sued for in any court, by the party of the second part, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the party of the second part, or his or their agent, and delivered to the freight claim agent of the party of the first part at his office in the City of St. Louis, within ten (10) days from the time said stock is removed from said cars; and it is also agreed that, if any loss or damage occurs upon a connecting line, then such line shall not be liable unless a claim shall be made in like manner, and delivered in like time, to some officer or general agent of the line on which the loss or injury occurs."
Defendant states that the plaintiffs wholly failed to comply with the provisions of section 10; and further answering, defendant claims that the agent of defendant at Columbia had no power or authority to make an agreement with plaintiffs, or any other shipper to furnish cars at any definite time. At the close of plaintiff's case the defendant offered a demurrer to the evidence which was overruled; and again at the close of all the evidence, defendant asked a peremptory instruction in its favor which was by the court overruled. The jury returned a verdict for $ 723.37, upon which judgment was rendered, and defendant appealed.
The cause was instituted in the circuit court of Boone county in September, 1918, and is the second suit filed in the case, plaintiffs, having been non-suited in a previous action on the same state of facts. The original petition was in three counts, but the first and third counts were dismissed by plaintiffs prior to the trial of the cause on April 19, 1919. From the verdict in favor of plaintiffs on the second count, defendant appealed to this court, where judgment was reversed and the cause remanded with the suggestion that "in view of the possible right plaintiffs may have to amend (concerning which we make no decision), we will not reverse the judgment outright but will remand the cause." [Thee v. Railroad, 217 S.W. 566.]
It appears from the contention of plaintiffs and the evidence produced that there were two contracts connected with this transaction, namely, (a) an oral contract to furnish three cars for the shipment of 56 head of fat cattle, upon which this suit is based, and (b) a written contract to ship 46 head of cattle. The oral contract is alleged to have been entered into on October 14, 1917, and the written contract on October 16, 1917. The oral contract was entered into first and was made up of a conversation between plaintiff Neeley and defendant's assistant station agent at Columbia. Neeley testified that on Sunday, October 14, 1917, he called the railroad station over the telephone "and the young man in the office said he would take the order and I said I wanted three cars for the next day, Monday, the...
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