Olson v. Chicago, B. & Q.R. Co.

• Decision Date: 09 March 1918
• Docket Number: 4830.
• Citation: 250 F. 372
• Parties: OLSON v. CHICAGO, B. & Q.R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

250 F. 372

OLSON v. CHICAGO, B. & Q.R. CO. et al.

No. 4830.

United States Court of Appeals, Eighth Circuit.

March 9, 1918

George H. Mayne, of Council Bluffs, Iowa (Mayne & Green, of Council Bluffs, Iowa, on the brief), for plaintiff in error.

George J. Mersereau, of Kansas City, Mo. (Thomas R. Morrow and John H. Lathrop, both of Kansas City, Mo., and John P. Organ, of Council Bluffs, Iowa, on the brief), for defendant in error Atchison, T. & S.F. Ry. Co.

George S. Wright, of Council Bluffs, Iowa, for defendants in error Chicago, B. & Q.R. Co. and others.

Before SANBORN and SMITH, Circuit Judges, and TRIEBER, District Judge.

SANBORN Circuit Judge.

About April 20, 1913, the Southern Pacific Company contracted with Theodore Olson to transport 30 carloads of cattle at a lower rate on a declared valuation from Huachuca, Ariz., to Missoula, Mont. The cattle were delivered to it on April 20 1913; they were carried over the railroad of the Southern Pacific Company to Deming, N.M., thence over the railroad of the Atchison, Topeka & Santa Fe Railroad Company to Denver Colo., and thence over the railroad of the Chicago Burlington & Quincy Railroad Company to Billings, Mont where they arrived and were unloaded on April 29, 1913, and where, on May 5th or 6th, Olson sold about 17 carloads of them, paid the freight and charges thereon on May 17, 1913, and some days later shipped the remaining 11 carloads of the cattle on to Missoula. As the cattle approached Raton on the Atchison, Topeka & Santa Fe Railroad, where it was necessary to unload them for feed, rest, and water, the weather became cold and stormy, and some of the cattle became chilled or frozen, so that by the 7th of May following about 90 of them had died. On April 23, 1913, as the train carrying the cattle was climbing up toward Raton, Olson telegraphed the superintendent of the Atchison, Topeka & Santa Fe Railroad Company thus:

'Bad run all the way from Albuquerque snow storm here now impossible unload at Raton cattle will chill to death up to you and company get cattle on feed La Junta.'

Before their arrival at Raton, Mr. Scott, a freight transportation inspector of the railroad company, came upon the train, stayed with it that night and the next day, and saw the condition of the cattle. Olson protested against unloading them at Raton, but Scott ordered them unloaded, fed, and watered in muddy pens, where several of them died that night. Olson told the agent of the railroad company at Billings, within 10 days after the damage to the cattle, that he should claim damages from the railroad company for the injury they had sustained by the negligence of that company in transporting them. By the live stock shipping contracts and bills of lading of the Southern Company, under which these cattle were transported, Olson agreed:

'That in case any loss or damage shall have been sustained for which first party (the Southern Company) is liable, demand or claim for such loss or damage will be made by second party (Olson) on the freight claim agent of first party in writing, within ten days after unloading of the live stock, and that in event of failure so to do, all claims for loss or damage in the premises are hereby expressly waived, released, and made void.'

On May 17, 1913, the attorneys for Mr. Olson wrote and mailed at Council Bluffs, Iowa, a letter addressed to general claim agent of the Atchison, Topeka & Santa Fe Railway Company, at Chicago, Ill., in which they made a claim and demand upon the company, on behalf of Mr. Olson, for damages on account of its negligence in the transportation of the 30 cars of cattle. In August, 1913, they brought this action for these damages against the Southern Pacific Railroad Company, the Atchison, Topeka & Santa Fe Railway Company, and the Chicago, Burlington & Quincy Railroad Company. The companies defended on the ground that no claim or demand for the damages was made in writing within 10 days after the unloading of the cattle, and on the ground that the damages, if any, resulted from the fact that the cattle were too weak and unfit for shipping. During the course of the trial the court excluded evidence of the oral notice of Olson's claim for damages given to the agent at Billings within 10 days after the unloading, held that the 10 days' time for the giving of the written notice ran from the unloading at Billings on April 29, 1913, that the notice of May 17, 1913, was too late, and upon that ground directed a verdict for the defendants at the close of the plaintiff's evidence. These rulings are assigned as error.

It is contended that these decisions of the court below were erroneous: (a) Because no written notice was required by the terms of the contract of injury or damage resulting from the death of the cattle that died at Billings and before the cars arrived at that town; and (b) because the time for the giving of the notice did not begin to run until the cattle in the 11 cars which finally went to Missoula were unloaded there some days after May 7, 1913. But the contract clearly required the written notice of 'any loss or damage * * * for which first party is liable,' and this included all loss and damage by injury or death en route as well as at terminals.

At the close of the plaintiff's case there was no evidence that any cattle which finally reached Missoula were in any way injured by the negligence of the defendants. All the damage of which there was any evidence was to the cattle that had died...