Hardin v. Missouri Pac. Ry. Co.

• Decision Date: 02 July 1906
• Citation: 120 Mo. App. 203,96 S.W. 681
• Parties: HARDIN et al. v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 681

120 Mo. App. 203

HARDIN et al. v. MISSOURI PAC. RY. CO.

Kansas City Court of Appeals. Missouri.

July 2, 1906.

Rehearing Denied October 1, 1906.

1. CARRIERS—INITIAL CARRIER—LIABILITY FOR NEGLIGENCE OF CONNECTING CARRIER.

A carrier contracting to carry a shipment to its destination, a point beyond its line, is liable for damages resulting from negligent delay in the transportation, whether the delay occurred on its own line or that of a connecting carrier, though the bill of lading restricted its liability to the consequences of its own acts.

2. SAME — NOTICE OF DAMAGES — FAILURE TO GIVE—EFFECT.

Where a carrier learned of the damaged condition of a shipment on its arrival at the point of destination, and was afforded opportunity to investigate the nature and extent of the damage, the failure to give notice of damage, as required by the bill of lading, did not defeat a recovery.

3. EVIDENCE—SECONDARY EVIDENCE—GROUND FOR ADMISSION—SUFFICIENCY.

A party testified that he had dictated to his stenographer a letter to the adverse party and had read and signed it after it had been written. He then returned it to the stenographer, whose duty it was to prepare letters for mailing and mail them, but he could not say from his personal knowledge whether or not the stenographer had prepared the particular letter for mailing or mailed it, but only stated that it was her custom to follow this course with all of the letters dictated by him. Held, insufficient as a foundation for the introduction of secondary evidence of the contents of the letter.

4. CARRIERS—NEGLIGENT DELAY IN TRANSPORTATION —DAMAGES—BILLS OF LADING— STIPULATION.

The measure of damages for a carrier's negligent delay in transporting property is the difference between the market value of the property at the point of destination, in the condition in which it would have been received had it been delivered in a reasonable time, and its market value at that point in the condition which it was in at the time of its arrival, notwithstanding the stipulation in the bill of lading that in the event of loss of property the value of the same at the point of shipment should govern, the stipulation referring to property lost in transit and not to property damaged.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by Samuel Hardin and others against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Elijah Robinson, for appellant. Sherman & Fletcher, for respondents.

JOHNSON, J.

Plaintiffs, grain dealers doing business in Kansas City under the name of Samuel Hardin Grain Company, brought this action against defendant, a common carrier, to recover damages resulting from the alleged unreasonable delay in the transportation of a carload of corn chops from Kansas City to Babcock, Ga. The shipment was received by defendant on March 27, 1903, and from the contents of the bill of lading issued therefor by defendant, it is evident the contract made by the parties included the agreement of defendant to carry the shipment to its destination, a point beyond the line of defendant, consequently defendant became liable for damages to the property that resulted from negligent delay in its transportation, whether such delay occurred on its own line or on that of a connecting carrier, and despite the provision in the bill of lading, by which defendant attempted to restrict its liability to the consequences of its own acts. Lee v. Railroad (not yet officially reported), 94 S. W. 991; Bank v. Ry., 72 Mo. App. 82; Marshall v. Ry., 74 Mo. App. 81; Popham v. Barnard, 77 Mo. App. 628; Marshall v. Ry. Co., 176 Mo. 480, 75 S. W. 638, 98 Am. St. Rep. 508; Western Sash Co. v. Ry., 177 Mo. 641, 76 S. W. 998. It was shown by plaintiffs that the corn chops left Kansas City on the day of shipment in good condition, 10 days were a reasonable time for the transportation, and that, had no longer time been consumed, the chops would have sustained no damage in transit. It was conceded that the shipment did not arrive at Babcock until April 21st, more than three weeks after it left Kansas City, and that on arrival the chops were found to be in a badly damaged condition from heating and fermentation. The legal effect of conditions in the bill of lading was to limit defendant's liability on account of delays to those caused by negligence, but the facts and circumstances disclosed strongly tend to show a negligent origin of the delays that occurred. The issues were submitted to the jury, a verdict returned for plaintiffs, and judgment entered accordingly, from which defendant appealed.

The bill of lading contained a provision requiring notice of damage to be "reported by the consignee in writing to the delivering line within 36 hours after the consignee has been notified of the arrival of the freight at the place of delivery," and it is argued by defendant that the action must fail because no such notice was shown to have been given. Plaintiffs themselves were the consignees of the shipment, but on the bill of lading was indorsed the direction: "Notify Babcock Lb'r. Co." The delivering line was the Georgia, Florida & Alabama Railway Company. On the day the shipment arrived at Babcock the agent...