Franck v. Railway Exp. Agency

• Decision Date: 06 May 1953
• Docket Number: No. 33152,33152
• Citation: 112 N.E.2d 381,159 Ohio St. 343
• Parties: , 50 O.O. 318 FRANCK v. RAILWAY EXP. AGENCY, Inc.
• Court: Ohio Supreme Court

Page 343

159 Ohio St. 343

112 N.E.2d 381, 50 O.O. 318

FRANCK v. RAILWAY EXP. AGENCY, Inc.

No. 33152.

Supreme Court of Ohio.

May 6, 1953.

Syllabus by the Court.

Horses were shipped by express under a uniform ordinary livestock contract, whereby the express company for a fixed charge undertook to forward the animals to their specified destination, which contract provided that the express company would be liable only for 'delay, injury or loss caused by the express company or by the negligence of its agent or employees'; that if the animals were accompanied by the owner or an attendant in his employ, the shipper would load, tranship, unload, take care of, feed and water said animals while being forwarded or transported whether delayed in transit or otherwise; that the express company was relieved from liability in reference thereto; and that as a condition precedent to recovery for loss or injury to the animals or delay in their delivery, such loss, injury or delay should be proved by the shipper to have been caused by negligence of the express company. An action was brought to recover damages resulting from injuries to such animals accompanied in transit by the owner or an employee thereof. Held:

1. In order to recover, the shipper must prove by a preponderance of the evidence negligence on the part of the express company proximately causing the claimed injuries.

2. An instruction to the jury, that the plaintiff makes a prima facie case of liability where evidence is offered that the shipment of horses was received in good condition by the carrier and was delivered or received at the destination in a damaged condition, is in conflict with the valid contract executed by the parties and is prejudicially erroneous.

Suit was brought in the Court of Common Pleas of Ottawa County against the Railway Express Agency, Inc., to recover damages for injuries to 34 horses shipped from Oak Harbor, Ohio, to Unadilla, New York, under and pursuant to the terms of a uniform livestock contract. The defendant is a corporation organized under the laws of the state of New Jersey and is a common-carrier express company.

The plaintiff, Cyril E. Franck, who is engaged in the business of buying and selling horses, on or about December 1, 1945, delivered to the defendant 34 head of horses which were loaded in compartments in a car provided by the defendant for that purpose. The horses were consigned as ordinary livestock but were saddle horses and draft horses and were separated accordingly inside the car. The shipment moved from Oak Harbor via the New York Central Railroad to Buffalo, from Buffalo via Lackawanna Railroad to Binghamton, New York, and from Binghamton to Unadilla on the Delaware & Hudson Railroad. The plaintiff claims that by reason of delay in the transportation of the horses it became necessary to unload them at Buffalo for rest and that while unloaded and intermingling, and subsequent to reloading, the horses suffered injuries by contact with each other.

A caretaker, employed by the plaintiff, accompanied the horses under a separate contract whereby the caretaker was afforded free transportation, but in Buffalo, after the car was unloaded, he suffered injuries in a collision with an automobile and could not accompany the car, although he was on the train. It is alleged in the petition that the defendant took the horses from the custody of the caretaker, and that he did not know of their whereabouts while they were unloaded in Buffalo. Upon arrival at the destination, the shipment of horses was greatly reduced in value, and plaintiff in this action seeks to recover the sum of $2,499.65, claimed to be his loss by reason of the injuries suffered by the horses in transportation.

The defendant asserts two defenses in this action: First, that the notice of claim was not properly given, being made by an agent of the owner of the horses, plaintiff herein; and, second, that since the shipment was accompanied by an employee of the plaintiff the burden was on the plaintiff to show that the injuries to the horses were caused by the negligence of the defendant.

The case was tried to a jury which returned a verdict for the plaintiff in the sum of $1,200.

The Court of Appeals affirmed the judgment of the Court of Common Pleas.

A motion to certify the record of the Court of Appeals having been allowed, the cause is in this court for review.

True & Meyer, Port Clinton, for appellant.

A. C. Wilber, Port Clinton, for appellee.

MATTHIAS, Judge.

The defendant contends that the notice of claim filed with it by the O. h. Brown Service did not designate the plaintiff as the owner of the horses and, therefore, did not constitute a compliance with section 8 of the uniform ordinary livestock contract under which the shipment was handled.

The section read as follows:

'As conditions precedent to recovery claims must be made in writing to the originating or delivering carrier within nine months after delivery of the property or, in case of failure to make delivery, then within nine months and fifteen days after date of shipment; and suits shall be instituted only within two years and one day after the date when notice in writing is given by the carrier to the claimant that the carrier had disallowed the claim or any part or parts thereof.'

The rule is well established that a contract will be construed most strongly against the party who prepared it. The provision as to the requirement...