Hancock v. Chicago & A. Ry. Co.

• Decision Date: 08 June 1908
• Citation: 111 S.W. 519,131 Mo. App. 401
• Parties: HANCOCK v. CHICAGO & A. RY. CO.
• Court: Missouri Court of Appeals

111 S.W. 519

131 Mo. App. 401

HANCOCK v. CHICAGO & A. RY. CO.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

1. CARRIERS — CARRIAGE OF LIVE STOCK — NOTICE OF LOSS — SUFFICIENCY.

A contract of shipment of horses required written notice of injury within five days after the horses had been unloaded, but failed to designate the agent to whom notice should be given, and provided that, if consigned to any stockyards or other live stock market, then notice should be given before the stock was removed from the yards to the live stock agent or the general freight agent, or to the freight agent nearest the yards or market place. Within five days after unloading the horses not shipped to any stockyards or other live stock market, the shipper wrote to an agent of the carrier, as general freight agent, informing him of injury to a horse, and directed the letter to the carrier's ticket and freight office. Shortly thereafter the shipper applied to the carrier's division freight agent at the station where shipper lived, and received from him directions as to his claim, and at his request handed to that agent the papers relative thereto. Thereafter the division freight agent was transferred, and, in reply to a letter from the shipper's attorney, stated that he would refer his letter to the then district freight agent, who shortly thereafter called on the shipper relative to the claim. Held, that there was a sufficient compliance with the contract as to the giving of notice.

2. SAME — LIMITATION OF LIABILITY — VALIDITY.

A reduced rate for carriage is a sufficient consideration to support an agreed valuation of freight in the event of loss.

3. SAME.

Where the contract of shipment recites that a named rate is a reduced rate in consideration of an agreed valuation of the freight in the event of loss, it will be accepted prima facie as stated.

4. SAME.

A contract of shipment of horses, providing that the carrier would transport the horses "at the rate of Trf. per cwt.," that rate being less than the rate charged for transportation at the carrier's risk, or when the valuation was declared to be greater than that given therein, named no rate as a reduced rate; for, if the expression, "at the rate of Trf. per cwt.," be interpreted as at the tariff rate per hundred pounds, it is still not a named rate, where there is nothing to show the tariff rate.

5. SAME.

A contract of shipment of horses, providing that the carrier would transport the horses "at the rate of Trf. per cwt.," that rate being less than the rate charged for transportation at the carrier's risk or when the valuation was declared to be greater than that given therein, cannot be made to apply to the shipment in question, since it was a shipment of horses as such, without regard to weight, so as to support the defense of agreed valuation, in the event of loss, in consideration of a reduced rate.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by Archibald P. Hancock against the Chicago & Alton Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. M. Miller, T. H. Harvey, and Scarritt, Scarritt & Jones, for appellant. L. W. Scott and D. D. Duggins, for respondent.

ELLISON, J.

This action is for damages alleged to have resulted to plaintiff from injury to a valuable horse through the negligence of defendant in transporting him. There was evidence tending to show the horse to have been injured through the negligence of the defendant's servants, and he recovered a judgment for $350.

The shipment was by written agreement, wherein it was provided that, in case of loss to plaintiff, he should give written notice to defendant within five days. There were also provisions therein relating to the value of the horse not exceeding $100. These are the principal questions in the case. The contract in regard to notice reads as follows: "Eleventh. The second party further agrees that should any loss or damage of any kind occur to the property specified in this contract, the second party shall, within five days after the live stock in question has been unloaded, give notice in writing of his claim therefor to the first party. * * * If the property is consigned to or in care of any stockyards or stock company, or other live stock market place, then such notice shall be given before the stock shall have been removed from said yards or mingled with any other stock, to the live stock agent placed at said yards, or to the general freight agent of said first party, or to the freight agent of first party nearest to said yards or market place. * * *" The first clause of this contract fails to designate the particular agent of the defendant corporation to whom the notice must be given. The next clause requires it to be given to the agent at stockyards or the general freight agent if the stock was consigned in care of any stockyards or "other live stock market place." The animal in controversy was not so consigned, and we need only see if proper notice was given to defendant in the meaning of the contract.

There was evidence tending to prove that within five days plaintiff wrote to G. B. Simpson, defendant's agent at Kansas City, and informed him of the injury to his horse. He addressed the letter to Simpson as general freight agent, and directed it to defendant's ticket and freight...