Jonesboro, Lake City & Eastern Railroad Co. v. Maddy

• Decision Date: 12 March 1923
• Docket Number: 222
• Citation: Jonesboro, Lake City & Eastern Railroad Co. v. Maddy, 248 S.W. 911, 157 Ark. 484 (Ark. 1923)
• Parties: JONESBORO, LAKE CITY & EASTERN RAILROAD COMPANY v. MADDY
• Court: Arkansas Supreme Court

248 S.W. 911

157 Ark. 484

JONESBORO, LAKE CITY & EASTERN RAILROAD COMPANY v. MADDY

No. 222

Supreme Court of Arkansas

March 12, 1923

Appeal from Craighead Circuit Court, Lake City District; W. W Bandy, Judge; reversed.

STATEMENT OF FACTS.

C. P Maddy sued the Jonesboro, Lake City & Eastern Railroad Company to recover damages on account of the negligent delay and misdelivery of a carload of hogs shipped over the defendant's line of railroad to East St. Louis, Ill.

C. P Maddy, the plaintiff, was a witness for himself. According to his testimony, in 1920 he lived at Lake City, Ark., and was engaged in buying and shipping live stock. On the 6th day of April, 1920, he shipped a carload of hogs over the Jonesboro Lake City & Eastern Railroad Company from Lake City, Ark., to Davis & Daley, at East St. Louis, Ill. There were 114 hogs in the car, and they were in good condition. The plaintiff loaded the hogs in the car carefully, and they should have reached their destination two days after they left Lake City. The hogs never reached their destination. The Swift Packing Company took charge of them on the 21st of April, 1920, and sold them on the 22d inst. The plaintiff was charged $ 142.50 for the feed of the hogs in transit, and if they had gone to destination without delay a proper feed bill would have been only $ 5. One of the hogs died in transit, and the others fell off in weight on account of the delay in their shipment. The plaintiff went on a passenger train to St. Louis, Mo and learned that the hogs were at Dupo, Ill. Nine or ten days after they were shipped, the railroad company wanted to deliver the hogs to the consignees at Dupo and have them bring them to their destination in trucks. The consignees declined to receive them at Dupo, and the railroad company then took the hogs to Valmeyer, about twenty miles below Dupo.

J. E. Davis and Mike Daley, the consignees, were also witnesses for the plaintiff. Their testimony was substantially the same. According to their testimony, a representative of the Missouri Pacific Railroad Company asked them if they could accept the hogs at Dupo and carry them to their destination in trucks. They told the railroad company that they could not do this and could not accept the hogs at Dupo. Dupo is a station about ten or twelve miles out from the National Stock Yards in East St. Louis, and Valmeyer is a station on the Missouri Pacific Railroad. The hogs were never delivered to consignees, but were finally delivered by the railroad company to Swift & Company in East St. Louis, Ill. The railroad company said that the delay in shipment and the misdelivery of the hogs was due to a strike of the switchmen on the Terminal Railroad Company and some other railroads which connected with it. The Terminal Railroad Company makes 90 per cent. of all the deliveries to the National Stock Yards in East St. Louis, and would have made the delivery of the hogs in question had they been delivered to the consignees according to the terms of the bill of lading. The amount of the shrinkage of the hogs and the value due to their delay in carriage was established by the plaintiff.

According to the testimony of the defendant, the Missouri Pacific Railroad Company carried the hogs to Dupo, which is the connecting point between its road and the Terminal Railroad Association. The delay in the shipment and the misdelivery of the hogs was due to a strike of the switchmen of the Terminal Railroad Association and on the Missouri Pacific Railroad Company. The railroad company made every effort to deliver the hogs to the consignees. The Terminal Railroad Association was the carrier which would have delivered the hogs to the consignees had the strike not prevented it. The delivery was prevented because the Terminal Railroad Association could not get sufficient switchmen.

The particular provisions in the contract of shipment involved in this appeal are paragraphs 6 and 8, which are as follows:

"Paragraph six. The shipper hereby assumes and releases the company from risk of injury or loss which may be sustained by reason of any delay in such transportation of said stock, or injury thereto, caused by any mob, strike, threatened or actual violence to real or personal property, or by the refusal of the company's employees to work or otherwise, or the failure of machinery, engines or cars, or by injury to tracks or yards, storms, washouts, escape or robbery of any of said stock, overloading cars, fright to animals, or crowding one upon another, or from any and all other causes whatever, the liability of the carrier or any fact essential thereto in any instance or case shall not be presumed, but the burden of establishing such liability is assumed by the shipper in the event of a suit."

"Paragraph eight. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the facts and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that, as a condition precedent to his right to recover any damages for any loss or injury to said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company's road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or if moved from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockyards until the expiration of three hours after the giving of such notice; and a failure to comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice heretofore provided for cannot and shall not be waived by any person except a general officer of the company, and he only in writing. Nor shall any such damage be recoverable unless written claim therefor shall be presented to the company within ninety-one days after the same may have occurred."

The plaintiff did not give the notice to the railroad company contemplated by paragraph 8 of the shipping contract.

The jury returned a verdict for the plaintiff in the sum of $ 508.50, upon which judgment was rendered.

The defendant railway company has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

Eugene Sloan, for appellant.

Giving notice of damage to live stock before removal from destination is condition precedent to recovery. St. L. & S. F. Rd. Co. v. Pierce, 82 Ark. 353; K. & A. V. Rd. Co. v. Ayers, 63 Ark. 331; St. L. & S. F. Ry. Co. v. Hurst, 67 Ark. 407; Hofer v. St. L. S. Ry. Co., 101 Ark. 310; M. & N. A. Rd. Co. v. Ward, 111 Ark. 102. Court should have directed verdict under paragraph 6 of contract, a reasonable requirement and evidence being undisputed. So. Express Co. v. Caldwell, 21 Wad. 264; 22 U.S. L.Ed. 556; G. C. & S. F. R. Co. v. Levi, 76 Tex. 337; 8 L. R. A. 323; Pittsburgh etc. R. Co. v. Hazen, 84 Ill. 36; 25 Amer. Rep. 422; 4 R. C. L., pp. 743, 212; 10 C. J. pp. 293, 415. Instructions 2 and 3 for defendant should have been given. Others argued incorrectly given, especially No. 3, releasing carrier from liability if injury caused from strike on one road but liable if from combined strike on two.

J. F. Johnson and Basil Baker, for appellee.

Shipping contract no more than receipt for shipment under facts of case and terms and conditions fixed by law. Railway v. Cravens (1892), 57 Ark. 112; St. Louis-S. F Ry. Co. v. Wells (1907), 87 Ark. 469; St. L. & S.W. Ry. Co. v. Haynie (1915), 120 Ark. 26. No notice required of claim for damages, shipment never having been delivered at destination nor to consignee at all. Cases...