Richardson v. Chicago & A. Ry. Co.
| Decision Date | 31 March 1899 |
| Citation | 149 Mo. 311,50 S.W. 782 |
| Court | Missouri Supreme Court |
| Parties | RICHARDSON v. CHICAGO & A. RY. CO. |
Appeal from circuit court, Randolph county; John A. Hockaday, Judge.
Action by William A. Richardson against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Geo. Robertson, for appellant. A. H. Waller and B. B. Caples, for respondent.
Plaintiff recovered judgment against defendant for $1,000 as damages for negligently killing a jack belonging to plaintiff while said jack was being transported on defendant's railroad, and defendant appealed. This action was originally brought in the circuit court of Howard county, from which court it was transferred, on change of venue, to the circuit court of Randolph county. At the September term, 1894, of said court, judgment was rendered for plaintiff in the sum of $100; whereupon plaintiff appealed to the Kansas City court of appeals, where the judgment was reversed, and the cause remanded for a new trial. The opinion of the appellate court is reported in 62 Mo. App. 1. The petition alleged defendant to be a common carrier, and its incorporation, and that as such it undertook, on the the 5th day of April, 1892, to transport plaintiff's jack from Armstrong to Higbee at the usual tariff rate; that by defendant's negligence the jack was maimed and killed, to plaintiff's damage in the sum of $1,000, for which he asks judgment. The answer admitted the incorporation of defendant, that it was a common carrier, and the shipment of the jack; but denied all other allegations in the petition. The answer further set up a special contract between J. B. Martin, the consignor of said jack, and defendant, and alleged as contributory negligence that the animal was insecurely fastened in the car, and was not provided with proper bedding upon which to stand. It was further averred that by agreement the valuation of the jack in question had been fixed at $100, and that the shipment had been charged for on a rate based upon such valuation; that, had a higher valuation been placed upon the jack, a higher rate could and would have been charged. The answer also averred that by such contract it was stipulated that plaintiff in case of loss or damage, while the animal was in defendant's possession, should notify defendant thereof in writing within five days thereafter, or be forever barred, and pleaded a failure to give such notice; that it was further agreed by the terms of said contract that a failure to commence suit against defendant in case of loss within 60 days after the same occurred should bar the action; and that suit had not been commenced until after the said 60 days had elapsed. Plaintiff replied, denying the new matter contained in defendant's answer, and averred that, if Martin entered into the agreement alleged, such action on his part was without plaintiff's knowledge or consent, and beyond the authority of the agency; and further claimed a waiver by defendant of the requirement in the contract of shipment that written notice should be given within five days after such loss or damage, and that the actions and conduct of defendant were of such character as to estop defendant from setting up the failure to give written notice as a defense in bar of this action. The record shows the value of the jack to have been $1,000; that early in March, 1892, plaintiff, who was a dealer in horses and jacks, had a sale at his farm near Moberly, Mo., at which sale one J. B. Martin, who lives at Armstrong, Mo., a station on the line of defendant's railroad, purchased a young jack; that on the 3d day of April, 1892, Martin went to Moberly, and there consummated a trade with plaintiff whereby he received an aged jack, giving in exchange therefor the young jack previously purchased of the plaintiff. Martin also at this time bought a horse of plaintiff, and shipped both of said animals by rail from Moberly to Armstrong. Plaintiff instructed Martin to ship the jack he received in the trade to him, and furnished him with a halter with which to tie the jack in the car. Upon his arrival home, Martin loaded the jack traded to plaintiff in a car furnished by defendant company, and tied him in one end of said car under the direction of defendant's station agent, and signed a contract of shipment as consignor. This was the usual live-stock contract furnished by the railroad to its station agents to be used in the shipment of stock, and contained the following provisions material to an understanding of this controversy: ...
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Donovan v. Sells Fargo & Co.
...George v. Railroad, 214 Mo. 551, 113 S. W. 1099, 127 Am. St. Rep. 690; Railroad v. Cleary, 77 Mo. 634, 46 Am. Rep. 13; Richardson v. Railroad, 149 Mo. 311, 50 S. W. 782-for both the past and present condition of our own Missouri holdings, when unaffected by the Carmack Amendmeat to the Inte......
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...of the recently quoted language from the Act of 1887, but in relation to a shipping contract, see Richardson v. Chicago and Alton Railway Company, 149 Mo. 311, 50 S.W. 782. Among decisions, identically enforcing that statute, which have been made by this court or by Federal District Courts ......
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