Moore v. St. Louis & San Francisco Railroad Company
| Decision Date | 02 May 1910 |
| Citation | 127 S.W. 921,143 Mo.App. 675 |
| Parties | J. R. MOORE, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Christian Circuit Court.--Hon. John T. Moore, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
W. F Evans and Mann, Johnson & Todd for appellant.
(1) The court erred in not giving defendant's requested declaration of law, in the nature of a demurrer to the evidence, because plaintiff had entirely failed to comply with the provisions of the contract of shipment requiring him to give notice in writing, within one day after the delivery of such stock at destination, before such stock was removed from such place of destination or was mingled with other stock. Shelton & Childress v. Railroad, 131 Mo.App 560; Meriwether v. Railroad, 128 Mo.App. 660; Rice v. Railroad, 63 Mo. 314; Smith v Railroad, 112 Mo.App. 610; George v. Railroad, 214 Mo. 551. (2) The court erred in admitting in evidence the purported account sales, for the reason that it was hearsay and secondary evidence, and had not been properly identified. Hoskins v. Railroad, 19 Mo.App. 315; Hess v Railroad, 40 Mo.App. 202; Fountain v. Railroad, 114 Mo.App. 676; Henderson v. Railroad, 126 Mo.App. 610; Meriwether v. Railroad, 128 Mo.App. 663.
G. Purd Hays and J. B. Delaney for respondent.
This is an action by the plaintiff to recover damages alleged to have been sustained by him by reason of the defendant's negligent delay in transporting a shipment of cattle from Springfield, Missouri, to East St. Louis, Illinois, in October, 1907.
The answer, in addition to a general denial, alleged that on the 14th day of October, the time the contract of shipment was made, defendant had in force two legal rates applicable to the transportation of live stock from Springfield, Missouri; that one of said rates applied on shipments undertaken at carriers' risk, while the other was applicable on shipments wherein the shipper, for the purpose of availing himself of a reduced rate, entered into a special contract covering said shipment, and the matters incident thereto; that the shipment in question was made under the latter rate, and a special contract entered into relating thereto; that in this special contract, it was provided that as a condition precedent to recovery for any damages for delays, loss or injury to live stock covered thereby, the shipper should give notice in writing of his claim therefor to some general officer, or the nearest station agent of the company, or to the agent at place of destination, before the stock was removed from the point of shipment, and before it was mingled with other stock, and requiring the written notification to be served within one day after the delivery of such stock at destination, and that a failure to comply with the provisions of this clause should be a bar to any and all claims.
The answer alleged the non-observance of this clause in the contract, and that no notice of any claim was given the company, as required by said contract. The evidence fails to show the giving of such notice.
The bill of lading and contract under which the shipment was made, contained the provisions set out in the answer, and also recited that the shipment was at the rate of twenty cents per hundred, and that it was a special and less rate than the one...
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