Freeman v. Kansas City Southern Ry. Co.

• Decision Date: 02 April 1906
• Citation: 93 S.W. 302,118 Mo. App. 526
• Parties: FREEMAN et al. v. KANSAS CITY SOUTHERN RY. CO.
• Court: Missouri Court of Appeals

93 S.W. 302

118 Mo. App. 526

FREEMAN et al. v. KANSAS CITY SOUTHERN RY. CO.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

Rehearing Denied May 7, 1906.

1. CARRIERS—TRANSPORTATION OF GOODS—INJURY TO GOODS—NOTICE OF CLAIM.

That a shipper of corn notified the carrier of injury to it due to delay as soon as he learned of it, did not excuse him from the operation of a provision in the contract of affreightment, that the carrier should not be liable for loss or damage unless the claim should be made therefor in writing within five days of the arrival of the shipment at its destination, where no effort was made for two weeks after the arrival of the shipment to learn its condition, though the corn was shipped when the weather was such that injury might have been expected from delay.

2. SAME—VALIDITY OF CONTRACT—CONSIDERATION.

A stipulation in a contract of affreightment that the carrier shall not be liable for loss or injury to the goods unless a claim therefor is made in writing within five days after the arrival of the shipment at its destination is supported by sufficient consideration.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by A. Freeman and another against the Kansas City Southern Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Cyrus Crane and Geo. J. Mersereau, for appellant. Sherman & Fletcher, for respondents.

JOHNSON, J.

Plaintiff shipped two cars of corn at different times over defendant's line of railroad from Kansas City to points in Louisiana and claims that in consequence of defendant's failure to safely transport them within a reasonable time the corn in both cars was damaged. The petition is in two counts, each shipment being made the basis of a separate cause of action. Plaintiffs recovered judgment on both counts and defendant appealed.

It is conceded that defendant received the cars at Kansas City as a common carrier for hire, but in the answer defendant alleges that plaintiffs failed to comply with the provision of the written contracts of affreightment, under which the transportation was made: "It is further agreed that all claims for loss and damage to freight transported hereunder shall be made in writing by consignors or consignee to the auditor of this company, or the station agent of the delivering company at the point of destination, within five days of its arrival there and, that if such notice or application is not so given or made, this company shall not be held liable for any loss or damage to said freight whether same is occasioned by the negligence or fault of this company, or otherwise; failure to give such notice being deemed a waiver and surrender of any such claim for loss or damage." Plaintiffs admit notices of loss were not given in the time specified, but endeavor to justify their failure to comply with this requirement of the contracts upon the following grounds: First, that there was no consideration to support the stipulation; second, defendant waived compliance with its terms; third, defendant had actual knowledge of the damage when the cars reached their destination; and, fourth, plaintiffs notified defendant in writing so soon as they could in the exercise of reasonable diligence ascertain the nature and extent of the damage.

The facts relating to the first shipment are as follows: On February 19, 1903, defendant received from plaintiffs a car loaded in bulk with 44,000 pounds of No. 2 white corn, and issued its bill of lading in writing for the transportation of the car from Kansas City to New Iberia, La., and its delivery at destination to plaintiffs' order. The corn had been sold to Davis & Scharff of New Iberia, to whom delivery was to be made on the payment of a draft for the purchase price, drawn upon them by plaintiffs, and to which the bill of lading was attached. When plaintiffs turned over the car to defendant, they notified defendant to hold it for sacking, which meant that plaintiffs desired to place the corn in sacks before the car started forward. Defendant had a certain track in its yards in Kansas City called the "sacking track" where it placed all cars of grain held for sacking. For some reason not shown, it failed to switch the car to that track until February 24th. Plaintiffs on that day sacked the corn, and released the car to defendant, who took it to another track and discovered that it was overloaded. It was held until the 28th, when defendant transferred the corn to another car, but the shipment did not leave Kansas City until March 2d. It arrived at New Iberia March 11th. The agent at that point testified, and in this is uncontradicted, that: "Shipment came consigned, `Shipper's order—notify Davis & Schariff,' and I notified them immediately on the arrival of the car. I notified them several times both by postal and personally. Upon notifying them, they advised me that as soon as they had room in their warehouse they would take the shipment. It was on the morning of March 25th they notified me they would reject the shipment, and that was the first time they had refused to accept it. They kept promising to take the shipment from March 11th, when the car first arrived, and I notified them up to March 25th, when they finally refused it." Q. "What were their reasons, if they gave any, for not taking the car?" A. "The crowded condition of their warehouse." On March 27th, plaintiffs were advised by telegram from the bank at New Iberia of the dishonor of the draft by Davis & Scharff, the drawees. In response to their telegram to the drawees asking why payment of the draft was refused, they received a message on the same day, March 27th, saying, "Corn is heated, rotten, and not worth the freight." On March 29th, plaintiffs had the corn inspected by a merchant in New Iberia, who advised them of its worthless condition, and, on April 3d, plaintiffs presented a written claim to defendant for the damage sustained. The claim was rejected, for what reason does not appear; and this suit followed.

The corn was in good condition on the date it was sacked, February 24th. The evidence does not disclose its condition on February 28th, the date it was ready to go forward. At that season of the year, there was liklihood, known to both parties, of the corn germinating or fermenting if it remained unaired for a considerable length of time, especially if the weather was warm, and it was subjected to dampness. The witness, who examined it at New Iberia, said it was "green, mouldy, and half rotten." Another witness testified the car "had a leaky roof," and it was shown that the weather was...