Hamilton v. Chicago & A. R. Co.

• Citation: 177 Mo. App. 145,164 S.W. 248
• Court: Missouri Court of Appeals
• Decision Date: 16 February 1914
• Parties: HAMILTON v. CHICAGO & A. R. CO.

164 S.W. 248

177 Mo. App. 145

HAMILTON v. CHICAGO & A. R. CO.

Kansas City Court of Appeals. Missouri.

February 16, 1914.

1. COURTS (§ 97) — PRECEDENTS — INTERSTATE SHIPMENTS — CONSTRUCTION OF CONTRACT.

A contract for an interstate shipment of freight must be construed with reference to decisions of the federal courts instead of those of the state courts on the question.

2. CARRIERS (§ 228) — FREIGHT — ACTION FOR DAMAGES — BURDEN OF PROOF.

The burden is on the shipper suing for damage to live stock to show that there was no consideration for a provision, in the bill of lading covering an interstate shipment, requiring notice of claim for damage to be given within five days after the stock is unloaded.

3. CARRIERS (§ 228) — FREIGHT — BURDEN OF PROOF — NOTICE OF CLAIM.

The burden is on a shipper suing for damage to live stock in an interstate shipment to prove that notice of a claim for injury was given within five days after the cattle were unloaded, as required by bill of lading.

4. CARRIERS (§ 218) — LIVE STOCK — CONTRACT.

One shipping cattle under a contract providing that, for the consideration contained therein, the carrier agreed to transport at the rate named, which was less than when the valuation was declared to be greater than that declared therein, subject to the conditions specified, is deemed to have assented to the provisions of the contract, including one requiring notice of claim for damage.

5. CARRIERS (§ 218) — LIVE STOCK — VALIDITY OF CONTRACT.

A provision, in a contract of interstate shipment, requiring the shipper to give written notice of claim for damage, and releasing the carrier from liability upon failure to do so, is valid.

Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Action by D. V. Hamilton against the Chicago & Alton Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

T. A. Boulware, of Fulton, and Scarritt, Scarritt, Jones & Miller, of Kansas City, for appellant. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

TRIMBLE, J.

This is a suit for damages alleged to have been caused by negligent delay in the shipment of a car of 24 head of mules from the National Stock Yards in Illinois to McCredie, Mo. Plaintiff's charge is that, by reason of the exposure of the mules, caused by the negligent delay, two of them died from pneumonia, two others contracted a disease from which they afterward recovered, though in a damaged condition, and the remaining 20 lost weight and appetite, all to plaintiff's damage in the sum of $750.

The answer denied this, and set up that the shipment was under a written contract which provided that, in consideration of a reduced rate, plaintiff declared the value of said mules to be $100 each, and that, in the event of injury or death of any of said mules, defendant's liability should not exceed said value of $100, and that plaintiff, by reason of such agreement, is estopped from claiming any greater value than $100 each. The answer further set up that said contract provided that, if any loss or damage occurred to said mules during shipment, plaintiff should, within five days after the mules had been unloaded, give to defendant notice in writing of his claim, and, if he failed to do so, then defendant should be released therefrom, and that plaintiff failed to give such notice.

Exposure is the only cause alleged for the sickness and loss of weight, and the alleged exposure was caused by unloading the mules from the car at Mexico, Mo., and keeping them in the stock pens there from 2:20 p. m. of one day until 7:30 a. m. of the next. This unloading at Mexico was made necessary by the federal 28-hour law; but plaintiff claims the mules would not have been on the train 28 hours if no negligent delay had occurred, hence the sickness resulted, according to plaintiff's contention, directly from the alleged negligent delay.

The mules started on their journey at 2:30 p. m. September 10, 1911. They reached Mexico, Mo., at 2:20 p. m. of September 11th, and were there unloaded into stock pens having sheds. Defendant claims the pens were in good condition; but plaintiff says they were muddy. No rain fell on the 11th; but it did rain the day before. A weather record, kept at Mexico, showed there was no rain on the 11th or 12th of September, and that the highest temperature of the 11th was 91 degrees at noon, and the lowest was 63 degrees at night. The mules were therefore unloaded when the thermometer was around 90 degrees, and that night the temperature fell to 63.

Defendant contends that there was no evidence of negligent delay, and, furthermore, that keeping the mules in the pens at Mexico under such weather conditions could not be said to be "exposure" sufficient to have caused the sickness alleged. There was evidence tending very strongly to show that the mules had stockyards fever; that the yards from which they came were infected with it; that stockyards fever is a contagious and infectious disease, and frequently develops into pneumonia. Plaintiff, however, offered testimony to show that the disease developed at such a time after their stay in the pens at Mexico as to indicate that the disease originated there; that pneumonia was ordinarily brought on by exposure; that it usually manifested itself in about 24 to 48 hours after exposure; and that the exposure likely to bring on pneumonia would ordinarily consist of a change from a warm and dry, to a wet and cool, place of confinement. The mules left Mexico at 7:30 a. m. of the 12th, and arrived at McCredie, their destination, 16 miles away, at 9:45 a. m. of the same day. Plaintiff noticed five or six of them coughing, and the next day some of the mules showed evidence of pneumonia.

It is unnecessary, however, for us to decide whether there was any substantial evidence to show negligent delay, or to show with reasonable certainty that the sickness arose from the keeping of the mules in the pens at Mexico rather than from stockyards fever contracted at the stock pens in Illinois, if we must give effect to the clause in the shipping contract providing that plaintiff, in order to recover, must give notice of loss or damage within five days.

The shipment, being from Illinois to Missouri, was an interstate commerce transaction. It was made on a written contract signed by both shipper and carrier. (Indeed, the amendment to the Hepburn Act, commonly known as the Carmack Amendment, passed June 29, 1906 [Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307)], abrogates the shipper's right to have the carrier take a shipment without a contract, and carry the shipper's goods solely by reason of its duty as a common carrier, but compels the carrier to issue a receipt or bill of lading therefor which by its nature is or becomes a contract between them.) This written contract contained the following provisions:

"That for the considerations, mutual agreements, and conditions herein contained the party of the first...