Johnson v. Missouri Pac. Ry. Co.

• Citation: 187 S.W. 282
• Decision Date: 12 June 1916
• Docket Number: No. 12037.,12037.
• Parties: JOHNSON v. MISSOURI PAC. RY. CO. et al.
• Court: Court of Appeal of Missouri (US)

187 S.W. 282

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

No. 12037.

Kansas City Court of Appeals. Missouri.

June 12, 1916.

Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by J. A. Johnson against the Missouri Pacific Railway Company, and others. Judgment for plaintiff, and defendants appeal. Reversed.

White, Hackney & Lyons, of Kansas City, for appellants. Horace Kimbrell and Martin J. O'Donnell, both of Kansas City, for respondent.

TRIMBLE, J.

This is a suit, under the Carmack Amendment to the Hepburn Act, against the defendants, being, respectively, the initial and delivering carriers of a shipment of horses from Kansas City, Mo., to Augusta, Ark. The suit was for damages arising by reason of injuries inflicted upon the horses during transit.

The shipping contract, signed by carrier and shipper, provided for a written notice of claim for damages to be given the carrier within a certain time after delivery of the stock at destination and before removal and mingling of same with other stock. The answer set up this clause of the contract and pleaded its noncompliance as a bar to the action. No written claim for damages was ever presented in accordance with said provision of the contract. The written delivery receipt of the stock signed by the plaintiff consignee, identified in the record as Exhibit B., can in no way be construed as, or tortured into, a claim for damages. The provision is valid and binding upon the shipper. Missouri, etc., R. Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690. It is an agreement that may be incorporated in a general form of bill of lading, and does not have to have a special consideration to support it. Johnson v. Chicago, etc., R. Co., 177 Mo. App. 194, 164 S. W. 182. The shipment, being one in interstate commerce, is governed exclusively by federal law and federal decisions. Consequently it is useless to attempt to avoid the result of failure to give notice by invoking the benefit of any state rule prevailing on the subject prior to the entry by Congress into the field of legislation on the subject of the liability of interstate carriers. Such federal legislation is exclusive and supersedes all state laws, rules, and regulations in force prior thereto. Hamilton v. Chicago, etc., R. Co., 177 Mo. App. 145, 164 S. W. 248. And a failure to comply with the requirement as to notice bars the shipper's action. McElvain v. St. Louis, etc., R. Co., 176 Mo. App. 379, 158 S. W. 464; Smith v. St. Louis, etc., R. Co., 186 Mo. App. 401, 171 S. W. 635.

Notations on the freight bill that the freight is in bad order do not constitute such notice, nor take the place thereof. St. Louis, etc., R. Co. v. Overton (Tex. Civ. App.) 178 S. W. 814. The talk made by the consignee to the station agent did not constitute even oral notice that a claim would be presented; but, even if he had informed said agent orally that a claim would be presented, it would not have been a compliance with the provision requiring written notice. Kidwell v. Oregon Short Line R. Co., 208 Fed. 1, 125 C. C. A. 313. So, also, knowledge on the part of the station agent at destination that the stock was injured does not render unnecessary the presentation of a written notice that claim for damages will be made.

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