Howard & Callahan v. Illinois Cent. R. Co.

• Decision Date: 18 December 1914
• Citation: 171 S.W. 442,161 Ky. 783
• Parties: HOWARD & CALLAHAN v. ILLINOIS CENT. R. CO.
• Court: Kentucky Court of Appeals

171 S.W. 442

161 Ky. 783

HOWARD & CALLAHAN v. ILLINOIS CENT. R. CO.

Court of Appeals of Kentucky.

December 18, 1914

Appeal from Circuit Court, Fulton County.

Action by Howard & Callahan against the Illinois Central Railroad Company. Judgment for defendant, and plaintiffs appeal. Reversed, with directions.

Herschel T. Smith, of Fulton, for appellants.

Trabue Doolan & Cox, of Louisville, R. V. Fletcher, of Chicago Ill., Carr & Carr, of Fulton, and Thomas & Webb, of Mayfield for appellee.

CARROLL J.

The appellants, Howard & Callahan, shipped from Coulterville, Ill., to Fulton, Ky. a car load of mules. These mules, in course of shipment, and at Mounds, Ill., were left standing in open pens in a cold rain for several hours, and by reason of the exposure a number of them were seriously injured and damaged. To recover compensation for the loss sustained by the injuries to the stock so occurring, they brought this suit.

For answer to the petition, the railroad company, after denying negligence in the carriage of the stock, set up: That it was engaged as a common carrier in commerce between the states of Kentucky and Illinois and other states, and that the stock was delivered to it for transportation and accepted by it in interstate commerce. That the parties at the point of shipment in the state of Illinois entered into a written contract for the shipment of the stock that contained, among others, these clauses:

"(6) It is further agreed by the shipper that no claim for loss or damage to stock shall be valid against the railroad company, unless it shall be made in writing, verified by affidavit, and delivered to the general freight agent or freight claim agent of the railroad company, or to the agent of the company at the station from which the stock is shipped, or to the agent of the company at the point of destination, within ten days from the time said stock is removed from said cars.

(7) The rules and regulations printed at the head of this contract are an essential part of the said contract. No employé of the railroad company is authorized to change or waive the provisions of this contract."

It further pleaded:

"That, prior to the delivering to it of said shipment of cattle for transportation, it had published and filed with the Interstate Commerce Commission its schedule of tariffs and charges for the transportation of the mules from Coulterville and Carbondale, both in the state of Illinois, to Fulton, Ky. and as a part of such tariffs had filed official classification No. 37, under which schedule and tariff classification it was provided that shipments of the character mentioned in the petition should be made subject to a limitation of liability as to the valuation, and as to the time of presenting claim on account of such shipments, as set forth in the contract herewith filed as exhibit. * * * Defendant says that no claim for loss or damage to any of the stock embraced in any of said shipments was ever made or presented to it or to any of its officers or agents in writing or otherwise within ten days from the time the said stock embraced in said shipment was removed from the cars, and no such claim was ever presented to this defendant or to any of its officers or agents in writing, verified by affidavit. * * *"

And it pleaded and relied on these provisions of the contract, and the failure of the plaintiffs to observe them, as a bar to the action.

For reply to this answer the plaintiffs, after a general denial of the averments of the petition, averred, in avoidance of the stipulation in the contract above quoted, that when the mules arrived at Fulton, the place of destination, they--

"were in bad condition, but upon the promise of the defendant to pay them the damages sustained by reason of having unloaded and left standing in a cold rain the mules in Mounds, Ill., plaintiffs accepted the mules immediately and paid the charges under protest; and they allege that, when they paid the freight charges, the defendant promised that it would make good any and all damages they had sustained, and would pay the bill of the veterinary, and did in fact pay the same, and, when it promised to pay the damages the mules had sustained, it wrote upon the receipted freight bill as follows: 'Shipment delivered January 16th, under protest; colds developing; throats swelling; flanks drawing, indicating serious conditions account unloading in cold rain at Mounds, Illinois, January 11, 1913.' And they allege that by reason of the promise to pay the damage the mules had sustained, and written acknowledgment of the condition of the mules, and the payment of the veterinary's bill, all of which occurred within less than ten days of the unloading of the mules, they were quieted in their fears and lulled to inaction in the belief that the defendant would pay the damages until more than ten days had elapsed; and they allege that, by reason of the action and conduct on the part of defendant, it has waived clause 6 relied on in its answer, and, after lulling them to sleep and inaction for more than a period of ten days after the stock was delivered by its act and conduct, it is now estopped to rely upon clause 6 in the contract requiring claims to be filed in writing within ten days after delivery at destination or at all. They further allege the defendant had all the information about the condition of the mules plaintiffs had, and a written statement of the damages would not have aided it in ascertaining the extent of the damage, nor would it have increased or diminished the damage to the shipment."

The trial judge overruled a demurrer to this reply, and thereafter the case went to trial before a jury, whereupon, at the conclusion of the evidence for the plaintiffs, the lower court directed a verdict for the defendant upon the ground that, as clause 6 in the contract had not been complied with or waived, it presented a bar to any recovery by the plaintiffs.

Passing what occurred before the mules arrived at Fulton, the place of destination, as not necessary to a decision of the case, the evidence shows that, when the mules arrived at Fulton, L. T. Callahan, one of the plaintiffs, unloaded the mules in the presence of Mr. Woods, the general freight agent at that place. Callahan testified as follows:

"Q. What was the condition of the mules the night they arrived and next morning? A. Very bad. I refused to receive them. I knew they were exposed. I talked to Mr. Woods. I told him I would not accept them. I felt that they were responsible, and I would not take them; but Mr. Woods told me if I had a barn or stable to put them in we should take these mules and do the best we could for them. We woke the men up at the office. I think Mr. Pelley was there. Q. The superintendent? A. Yes, the superintendent. They told me to do the best we could in handling them, and possibly we would get along without any trouble. Q. You did take them? A. Yes. Q. Did the railroad company have any veterinary look after them and doctor them? A. Yes; Dr. Cathcart. Q. Who paid his bill? A. The railroad company, I think. In fact, I know they did. Q. Did you ever make any statement in writing, sworn to by either you or Mr. Howard, to any agent of the railroad company of your expected claim, or the claim you are suing on here? A. No, I asked them for it, but they didn't pay me any attention at all. Q. You made no claim in writing whatever? A. I don't think I did. Q. You say the agent of the company helped to unload them? A. Yes; the station agent, Mr. Woods. Q. He was present and helped unload them? A. Yes, sir. Q. Is he the one that wrote on the freight bill the condition of the mules? A. I presume he wrote it or had it written. Q. Who was it who told you to do the best you could with them and that they would treat you right about it? A. I think it was Mr. Pelley and Mr. Woods. Q. Who is Mr. Pelley? A. Superintendent of the Tennessee division."

Dr. Cathcart testified that he treated the mules, and that the railroad company paid his bill.

It is admitted that on the freight bill presented to the plaintiffs at Fulton, Ky. at the time of the delivery of the mules, there was written by the agent of the railroad company this:

"Shipment delivered January 16th, under protest; colds developing; throats swelling; flanks drawing, indicating serious conditions account unloading in cold rain at Mounds, Illinois, January 11, 1913."

With the pleadings and evidence in this condition, three questions are presented for our decision: First, was clause 6 in the contract of shipment a reasonable and valid stipulation? Second, could it be waived? Third, was it waived?

The contract of carriage here involved was made in Illinois for shipment to a point in Kentucky, and therefore it was an interstate contract, under the federal legislation regulating interstate commerce, and this legislation has been held to be controlling notwithstanding that it may conflict with state Constitutions and laws. Adams

Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N. S.) 257; M., K. & T. Ry. Co. v. Harriman Bros., 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690.

In this last-mentioned case the contract of carriage, in addition to placing a limited value on the live stock shipped, provided that an action on the contract could not be sustained, unless brought within 90 days after the damages sought to be recovered had accrued. In holding that both of these limitations were valid, the court said:

"The liability sought to be enforced is the 'liability' of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack amendment of the Hepburn act of June 29, 1906. The validity of any stipulation in such a contract, which

...