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

• Decision Date: 10 December 1915
• Docket Number: No. 1597.,1597.
• Citation: 180 S.W. 1018
• Parties: McELVAIN v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

180 S.W. 1018

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

No. 1597.

Springfield Court of Appeals, Missouri.

December 10, 1915.

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by J. M. McElvain against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

See, also, 176 Mo. App. 379, 158 S. W. 464. W. F. Evans, of St. Louis, and Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellant. R. L. Ward and W. W. MeElvain, both of Caruthersville, for respondent.

FARRINGTON, J.

This is a snit begun by respondent to recover damages sustained on account of the alleged negligent handling of a carload of mules, 30 in number, whereby 6 or 7 of them died, and others of the shipment received injuries, in transit from the National Stockyards in Illinois to Caruthersville in this state. Upon, a jury trial the plaintiff prevailed, and defendant has appealed.

The answer alleged that the shipment was glade under a written contract whereby plaintiff, in consideration of being charged a reduced freight rate, limited the liability for injury or loss to an amount not to exceed $100 per head. Only two of the many provisions of this contract need be set forth for a decision of this case.

Clause 13 is as follows:

"As a condition precedent to recovery of damages for any death, loss, injury, or delay of the live stock, the shipper shall give notice, in writing, of his claim, to some general officer of the company or the nearest station agent, or the agent at destination, and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be promptly and fully investigated, and a failure to comply with this condition shall be a bar to the recovery of any damages for such death, loss, injury, or delay."

Clause 19 is as follows:

"No agent of this company has authority to waive, modify, or amend any limitation or provision of this contract, or to furnish any special kind of cars, or to furnish cars at any fixed time, or to agree to transport the live stock by any certain train, or within any fixed time, or to reach any particular market, which the company hereby expressly declines to do."

The answer alleged that plaintiff is barred from a recovery on account of failure on his part to give the required written notice referred to in clause 13.

The case was tried in the circuit court on the theory that plaintiff did fail to comply with the contractual requirement as to written notice, but plaintiff there sought to avoid the consequence by attempting to establish a waiver by the defendant. The evidence along this line is briefly as follows:

On the morning after the arrival of the mules at destination and within 24 hours, before they were mingled with other live stock, plaintiff went to defendant's station agent at Caruthersville and talked with him about the matter, and plaintiff testifies that this agent told him that he (the agent) would give the notice himself, and that he would go down and rook at the mules, and that soon thereafter the agent did come down to where the mules were kept and made memoranda as to their injuries and told plaintiff he would wire in about it to headquarters. Plaintiff does not know whether the agent did wire in about it or not, but does know that within a very few days and before the mules were mingled with other stock a traveling agent of the defendant came to Caruthersville, looked at the mules, and told plaintiff he would take the matter up with the company and see about a compromise. The station agent, who was one `of defendant's witnesses, testified practically the same as did the plaintiff concerning what plaintiff did and said as to giving written notice. Quoting from his testimony:

"I went down and made a statement of the condition the stock was in, and put that on the bad order report and sent it in that day. Don't remember just how long it was after I sent in that report until the railroad company sent a man down to inspect these mules, but don't think it was very long until a traveling agent came down. * * * I haven't the report with me that I made; I sent it to the company."

Appellant in its brief makes this statement:

"No point is made on this appeal as to whether the evidence was sufficient to establish a negligent injury, nor as to the amount of the verdict."

The whole ground for reversal is based on error in submitting the case in the instructions, on the theory that no written notice was given, as required by clause 13 of the contract, and that the station agent at destination, who went to see the mules, had authority to waive the giving of the written notice. Defendant contends that what its station agent said or did could not operate against it as a waiver. In view of the recent decision of the United States Circuit Court of Appeals (Clegg v. St. Louis & S. F. It. Co., 203 Fed. 971, 122 C. C. A. 273) in a case almost...