McElvain v. St. Louis & S. F. R. Co.

• Citation: 158 S.W. 464
• Parties: McELVAIN v. ST. LOUIS & S. F. R. CO.
• Decision Date: 05 July 1913
• Court: Court of Appeal of Missouri (US)

158 S.W. 464

McELVAIN v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

July 5, 1913.

1. PRINCIPAL AND AGENT (§ 101) — SCOPE OF AGENT'S AUTHORITY.

Where plaintiff, a purchaser of live stock, authorized the seller to arrange the shipment, the seller had authority to agree to conditions concerning notice of injury in consideration of a reduced freight rate.

2. COMMERCE (§ 8) — INTERSTATE COMMERCE — RULES OF PROCEDURE.

Congress by the enactment of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104,

24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) and amendment thereto (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1911, p. 1284]) has taken complete possession of the subject of liability of carriers on account of interstate shipments, and therefore in determining the validity of conditions in a contract of shipment the rules of decision of the federal courts under the Interstate Commerce Act govern, and a condition cannot be declared invalid because merely against state policy.

3. CARRIERS (§ 218) — INTERSTATE COMMERCE — CONDITIONS OF SHIPMENT.

A stipulation, in a contract for an interstate shipment of live stock, that written notice of injury should be given before the stock were mingled with other stock and within one day after delivery at destination, is valid.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Jerre McElvain against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

W. F. Evans, of St. Louis, and Moses Whybark, of Cape Girardeau, for appellant. Ward & Collins, of Caruthersville, for respondent.

ALLEN, J.

This case was originally appealed to this court from the circuit court of Pemiscot county; but under the provisions of section 3939, Rev. Stat. 1909, it was transferred to the Springfield Court of Appeals. The latter court rendered a decision in the case in an opinion by Nixon, J., of that court, which is reported under the title of McElvain v. Railroad, 151 Mo. App. 126, 131 S. W. 736. Thereafter the Supreme Court declared unconstitutional and void the above-mentioned act of the Legislature under which the said transfer was made from this court to the Springfield Court of Appeals. Dunham v. Nixon, 232 Mo. 98, 133 S. W. 336, rendering the proceedings had in the latter court coram non judice and void. Thereupon the cause was duly transferred to this court, where, under the ruling of the Supreme Court, the jurisdiction of the appeal continued to reside. The action is upon the common-law liability of a carrier for damages accruing to plaintiff on account of an alleged unreasonable delay in the transportation by defendant of a car load of mules from East St. Louis, Ill., to Caruthersville, Mo., and in failing to transport said mules in a careful manner. The cause was tried below before the court and a jury, resulting in a verdict and judgment for plaintiff, and the defendant appeals.

As to the pleadings, and for a full statement of the facts in the case, we refer to the able opinion of Nixon, J., of the Springfield Court of Appeals, reported as above mentioned. The decision of that court was predicated upon the failure of plaintiff to comply with a certain provision of the contract of affreightment under and by virtue of which the shipment was made. The eleventh clause of the shipping contract, which it appears was accepted by plaintiff's agents in consideration of a reduced rate, was as follows: "That, as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated; and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims."

Defendant in its answer alleged that plaintiff had failed to comply with this provision of the shipping contract, and the testimony of plaintiff, and the oral statement of his counsel at the trial, were that notice had not been given in compliance therewith. Pl...