Illinois Central Railway Co. v. W. J. Davis & Co.

• Decision Date: 23 October 1916
• Docket Number: 18030
• Citation: 72 So. 874,112 Miss. 119
• Parties: ILLINOIS CENTRAL RAILWAY COMPANY v. W. J. DAVIS & COMPANY
• Court: Mississippi Supreme Court

72 So. 874

112 Miss. 119

ILLINOIS CENTRAL RAILWAY COMPANY v. W. J. DAVIS & COMPANY

No. 18030

Supreme Court of Mississippi

October 23, 1916

APPEAL from the circuit court of Hinds county, HON. W. A. HENRY Judge.

Suit by W. J. Davis & Co. against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

Appellees brought suit against appellants for damages based on alleged injuries inflicted upon a carload of cattle shipped from Jackson, Miss., to East St. Louis, Ill. When the shipment arrived at Mounds, Ill., it had been on the road about thirty-two hours, and it would take at least nine hours longer to reach East St. Louis, and in order to comply with the interstate regulation, prohibiting confinement of cattle longer than thirty-six hours on a train without unloading for feed, rest, and water, the shipment was unloaded and kept at Mounds from two-twenty p. m. April 1st, to six-ten p. m April 2d, or about twenty-eight hours, during which time they were watered and fed and allowed to rest. It is shown that another train left Mounds about four-thirty p. m. and one about six-ten p. m. on April 1st, and another at six-fifteen a. m. April 2d, and plaintiff claims that the cattle should have been shipped on one of those trains rather than allowed to remain at Mounds until six-ten p. m. April 2d. Plaintiff alleges that because of such delay the shipment did not arrive in East St. Louis until April 3d, and that the market had declined during that time, and that there was considerable shrinkage in the weight of the cattle, and for this loss plaintiff sues. Plaintiff alleges that there were a number of unnecessary delays at other points along the road before reaching Mounds, and that the shipment should have reached East St. Louis in time for the market on April 1st or at latest in time for the market on April 2d. The defendant pleaded the general issue, and interposed a special plea, giving notice of the provisions of the contract of shipment, which recited:

"It is further agreed by the shipper that no claim for loss or damage to stock shall be valid against said 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."

The contract of shipment also provided that the maximum amount he could claim as damages for injury to any of the cattle shipped in the car was fifty dollars per head, and provided further, that if a higher value was to be declared on the shipment, an additional rate would be charged, and defendant then offered in evidence an extract from the southern classification under which this shipment moved, and which provided as follows:

"General Rules.

"Rule 1.

"The reduced rates specified in this classification will apply only on property shipped subject to the conditions of the carrier's bill of lading. Property carried not subject to the conditions of the carrier's bill of lading will be at the carrier's liability, limited only as provided by common law and by the laws of the United States and of the several states, in so far as they apply. Property thus carried will be charged ten (10) per cent. higher (subject to a minimum increase of one (1) cent per hundred pounds) than if shipped subject to the conditions of the carrier's bill of lading."

The appellee took advantage of the reduced rate, although his cattle were worth about seventy dollars a head, the rate charged was thirty-six cents per hundredweight according to the contract, whereas if he had paid a ten per cent. higher rate, the carrier's liability would have been--

"limited only as provided by common law and by the laws of the United States and of the several states so far as they apply."

It is shown on the trial that no written notice was given by appellee to any of the agents mentioned in the contract of shipment above quoted, but that one of the members of plaintiff's firm mentioned the matter to the traveling freight agent of the defendant company, and asked for an allowance because of this loss, and that this agent said he would take it up, and it is claimed by the appellee that the appellant in this way waived the ten days' limitation provided in the contract for giving written notice of claim for loss.

Judgment reversed.

Mayes, Wells, May & Sanders, for appellant.

Howie & Howie, for appellee.

OPINION

HOLDEN, J.

This case was appealed from the circuit court of Hinds county where the appellee, W. J. Davis & Co., recovered a judgment against appellant for damages to stock in transit. On May 8, 1916, we affirmed the judgment of the lower court, but after...