National Beef Packing Co. v. Missouri Pac. R. Co.

• Decision Date: 03 April 1972
• Docket Number: No. 25695,25695
• Parties: NATIONAL BEEF PACKING COMPANY, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 155

479 S.W.2d 155

NATIONAL BEEF PACKING COMPANY, Respondent, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant.

No. 25695.

Missouri Court of Appeals, Kansas City District.

April 3, 1972.

B. Kent Snapp, Hilary A. Bush and James L. Burgess, Kansas City (Johnson, Lucas, Bush & Snapp, Kansas City, of counsel), for appellant.

George M. Winger and William G. Levi, Kansas City (Smith, Schwegler, Swartzman & Winger, Incorporated, Kansas City, of counsel), for respondent.

PER CURIAM:

The principal issue is whether an amended petition stated a new cause of action for damage to a shipment of beer so that the claim would be barred under the notice provisions of the Bill of Lading, and by 49 U.S.C.A. 20(11). Section 2. (b) of the Bill of Lading provides that a notice of claim shall be filed within nine months of the delivery of the property, and suit shall be filed within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier had disallowed the claim or any part thereof specified in the notice. 49 U.S.C.A. 20(11) provides that carriers may not provide a shorter time than nine months for the giving of the notice, nor for the time of institution of suits within two years. Judgment for respondent was entered in the amount of $3,813.72, pursuant to the verdict of a jury.

The facts are that on January 29, 1963, two shipments of beef were made by respondent to its consignee in South Kearney, New Jersey. One of these shipments was loaded on 'piggy-back' trailer RCM 745, and consisted of 43 choice steers weighing 27,904 pounds. The other shipment was loaded on trailer RCM 757 and consisted of 44 choice steers weighing 28,977 pounds. Both shipments were described in separate bills of lading. On February 20, 1963, respondent gave notice of its claim for loss in shipment referring specifically to 43 choice cattle weighing 27,904 pounds, and to trailer RCM 745. Appellant disallowed this claim on July 30, 1963, specifically referring to RCM 745. In the original petition, filed July 15, 1965 (filed within two years and one day from the date of the disallowance notice), the shipment was described as consisting of 44 choice steers weighing 28,977 pounds. The original petition makes no reference to any bill of lading or trailer number, but alleges generally that respondent performed every condition incumbent upon it under the contract of shipment.

On June 5, 1970, pursuant to leave granted by the court in sustaining respondent's motion to file an amended petition, because of alleged clerical errors in the original motion, an amended petition was filed. This petition alleged that the shipment consisted of 43 choice steers weighing 27,904 pounds. Appellant claims that the amended petition alleged a new cause of action, a departure from the first claim, and therefore it was barred under the terms of the bill of lading.

The motion for leave to file the amended petition was supported by an affidavit of Mr. Wayne F. Caskey, one of respondent's attorneys, to the effect that the original petition was in error in alleging that the loss of the beef shipment sued for consisted of 44 choice cattle weighing 28,977 pounds, instead of the correct allegation that the shipment was 43 cattle weighing 27,904 pounds.

The amendment to the petition did not result in a new cause of action being asserted. The amendment is no different than one where a prayer for damages under an original claim is permitted to be amended. See Peterson v. Kansas City Public Service Co., Mo., 259 S.W.2d 789, 792(5). Nor, had the original petition not been amended as was done, would the facts submitted in its support (which were all based upon RCM 745--43 head of cattle weighing 27,904 pounds) have prevented a requested amendment to conform to the proof under Civil Rule 55.54, V.A.M.R. In short, the amended pleading here did not constitute a new cause of action; the pretrial matters referred to the correct bill of lading, shipment, and the loss thereunder which was the basis for the claim; appellant was not prejudiced by the amendment which related only to the amount of damages claimed under the shipment for which it had due notice, and for which the suit was timely filed; and upon which facts the action was tried.

Appellant says respondent did not produce evidence from which the jury could determine the lawful measure of damages which it says is the difference in the fair market value of the meat before and after the alleged spoilage. The evidence presented by respondent by its president, Mr. John Jacobson, is that on February 20, 1963, he advised that the meat shipment of January 29, 1963, of 43 choice cattle weighing 27,904 pounds was delivered to the consignee about 9:30 a.m., on Trailer RCM 745. On a report of the Railroad Perishable Inspection Agency, the meat was found to be sticky, discolored and odorous throughout. Appellant was advised by Mr. Jacobson, 'We were able to realize 40cents per pound from the sale of the hindquarters to Jefferson Packing Company for a salvage of $5,262.00 and then sold the forequarters to Harry Noah, Newark, New Jersey, for the sum of $4,019.89 or a total salvage of $9,281.89, thereby incurring a loss of $2,577.31 on the sale of the salvage. In addition thereto, we were charged two extra days demurrage at $22.00 per day, an additional $44.00, or a total loss of $2,621.31.' Appellant denied the claim by letter dated July 30, 1963. On January 29, 1963, respondent received an order from First National Stores, Inc., Meat Buying Department, for 45 'US. CH. Beef Steers' at 42 1/2 cents per pound. Forty-three steers were loaded on trailer RCM 745 on January 30, 1963. The invoice to First National Stores shows 43 choice steers, net weight 27,904 pounds at $.42 1/2 per pound, for a total amount of $11,859.20. Of these, other invoices show that 86 choice hinds were sold to Jefferson Packing Co., Hoboken, New Jersey for $5,262.00 and 86 plates and briskets, 86 backs, were sold to Harry Noah & Sons for a total of $4,019.89, by respondent. This evidence shows that respondent had a contract for the sale of the 43 steers for a total price of $11,859.20, a portion of the contract price it lost by reason of in-transit spoilage.

What appellant claims is that the general rule of damages, as stated in 13 C.J.S. Carriers § 264, p. 609, applies: 'The general rule is that the measure of damages for loss of property shipped is the market value at destination, and in case of injury, the difference between the value at the time and place of delivery in an uninjured condition and the value in the depreciated condition in which the property is actually delivered.' The contention ignores the exception to the general rule where the facts show that a shipper lost a contract price because of damage in transit. This exception flows from the provisions of the Carmack Amendment, 49 U.S.C.A....