Schade v. Missouri Pac. Ry. Co.
| Decision Date | 06 April 1920 |
| Docket Number | No. 15583.,15583. |
| Citation | 204 Mo. App. 88,221 S.W. 146 |
| Parties | SCHADE v. MISSOURI PAC. RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.
Action by W. F. Schade against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
James F. Green, of St. Louis, and W. C. Russell, of Charleston, for appellant.
A. M. Spradling, of Cape Girardeau, for respondent.
Action to recover the value of a registered jack called "John Elmer." On a trial in the circuit court plaintiff recovered the sum of $850, and after an unsuccessful motion for a new trial defendant duly perfected an appeal to this court. The action was originally against the Missouri Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company. Verdict and judgment went against the former alone, plaintiff dismissing as to the latter. The petition avers that in April, 1914, plaintiff purchased a registered jack from L. M. Monsess & Sons, farmers and stock raisers of Pettis County, in this state; that on April 17, 1914, Monsess & Sons delivered to defendant, the Missouri Pacific Railway Company, the jack in good condition; that the Railroad Company received it and agreed, in consideration of certain freight charges, to carry it safely from Smithton in Pettis County, to St. Louis, and at the latter place deliver it to the St. Louis, Iron Mountain & Southern Railway Company in as good condition as when received by it; that the Missouri Pacific Railway Company delivered the jack to the St. Louis. Iron Mountain & Southern Railway Company, at St. Louis, which latter railroad received it and agreed, for and in consideration of freight charges, to carry it from St. Louis to Jackson, in this state, and at the latter place to deliver it to plaintiff in as good condition as when received by it. The petition then avers "that the defendants, in violation of their said agreements, and in total disregard of their duties as common carriers aforesaid, so carelessly and negligently conducted themselves in the premises that said jack was greatly injured and was delivered to plaintiff in a damaged condition and subsequently died from the effect of said injuries."
The answer of the defendants sets out that before shipping the jack to plaintiff, Monsess & Sons, as consignors and agents of plaintiff, entered into a contract of shipment with the Missouri Pacific Railroad Company, then in control and operating a railroad owned by the St. Louis, Iron Mountain & Southern Railway Company, by the terms of which contract the defendants undertook to carry the jack, together with one other, from Smithton to Jackson, at the rate of $49.22, that rate being less than the rate charged for shipments transported at carrier's risk, and that in consideration of the reduced rate and other considerations, it was agreed in the contract, among other things, as follows: First, that plaintiff should assume all risk and expense of feeding, watering, bedding and otherwise caring for the live stock covered by the contract while in the cars, yards, pens or elsewhere, loading and unloading the same at its own expense and risk; that the plaintiff and his agents failed and neglected to place some person in charge of the stock while it was being transported to care for and look after it while in the cars, and that if any injury was suffered or sustained by the jack known as John Elmer, it is due to the failure of plaintiff and his agents to place some person in charge of the jacks to look after them and care for them while being transported from Smithton to Jackson. Second, that as a condition precedent to the recovery of any damages for any loss or injury to the jacks covered by the contract for any cause, including delays, it was agreed that plaintiff and his agents would give notice in writing of the claim thereof to some general officer of the defendants, or to their nearest agent, or to the agent at the destination, or to some general officer of the delivering line before the jacks were removed from the point of shipment and place of destination, such written notification to be served within one day after the delivery of the jacks at destination, to the end that such claim might be fully and fairly investigated, and that a failure to fully comply with the provisions of this clause should be a bar to the recovery of any and all claims, and to any and all suits or actions, brought thereon; and it is averred that plaintiff and his agents failed to give written notice of any claim or injury to either of the jacks to some general officer of the defendants or to their nearest station agent or to their agent at Jackson, Missouri, before the jacks were removed from the station at Jackson, and before the stock was mingled with other stock, and failed to serve such written notification upon some of the persons above named within one day after the delivery of the jacks at said station of Jackson, that being the place of destination; that they failed to give any written notice to any of the above officers or agents of defendants until the first day of September, 1914, nearly 5 months after the jacks were delivered by defendants to plaintiff at their station at Jackson, and this failure is pleaded in bar of the action. Third, the further provision in the contract pleaded is that the limitation of loss was $100 for each jack, when shipped under a like contract. * * * Fifth, that by the express provisions of the contract the shipper and agent of plaintiff acknowledged that they had the option of making the contract of shipment under the tariff rates either at carrier's risk or "upon a limited liability, and that they had selected the rate and liability named therein, to-wit, a limited liability based on a reduced rate and expressly accepted and agreed to all the stipulations and agreements and conditions contained in said contract of shipment." Finally, that it was expressly agreed in the contract that no agent of the defendants should have any authority to waive, modify or amend any of the provisions of the contract.
To this answer a reply was filed, admitting the shipment to plaintiff by Monsess & Sons, from Smithton to Jackson over the lines of the defendant, of the jack known as John Elmer, but it is averred that the purported contract under which the jack was alleged to have been shipped was void; admits that the Missouri Pacific Railway Company was then in control and operating the St. Louis, Iron Mountain & Southern Railway Company, but denies all other allegations, and by way of further reply plaintiff avers that on April 19, 1914, the date of the delivery of the jack to him, he notified the defendant's agent at Jackson, Missouri, of the condition of the jack and of his injuries and that the agent procured a veterinary surgeon to examine the jack and report to him its condition.
There was evidence, in the case to the effect that the jack in question, along with another, was in fine condition when shipped, and that its value was from eight hundred and fifty to nine hundred dollars. The two jacks were shipped from Smithton to Jackson, both points in this state. When the car containing the jacks arrived at Jackson, on April 17, 1914, plaintiff, with a colored man in his employ, and the local agent of the railroad at Jackson, one Kinder, went to the car and were present when the jacks were unloaded. There is no complaint of the condition of the younger jack and it does not appear that he was in any way injured.
Kinder want up with plaintiff and opened the car and then went back to his business at the depot. Plaintiff and his man untied the jack, "John Elmer," started to take him out, and found that he could hardly walk; was very sore and bruised and they had to push him out of the car and finally got him in front of the depot. There plaintiff called the agent's attention to the jack and he looked him over and told plaintiff to take him home. The jack was very sore in his right shoulder and left hind parts from his hip down; slightly swollen on the inside of the stifle and it took them nearly two hours to get him home, a distance of probably three-quarters of a mile. The jack would flinch when touched on these parts. When plaintiff got home with the jack he telephoned for a veterinary, one Crites, who examined him, and the next day he got another veterinary, one Whitticre, to examine him. The jack lingered along until a "good day in May," when they took him out and gave him a little exercise. He picked up a little but was still in bad shape and went along that way until he finally died. His condition never materially improved from the time he was unloaded until he died. Witness had bought him for breeding purposes. He had served only two or three times. Witness considered him cheap at $850 and had been asked 900 for him but by buying him and the younger one he got him cheaper; had told Monsess to ship the two jacks to him at Jackson, Missouri. They were shipped from Smithton April 17th and arrived at Jackson on the 21st. Prom the appearance and conduct of the jack witness was led to believe that he was hurt internally, and he died August 29, 1914. On September 1st, plaintiff made out a bill against the St. Louis, Iron Mountain & Southern Railway Company for injury to the jack, valued at $859, and one-half the freight on him, $24.61, a total of $874.61, and delivered this to the station agent of the St. Louis, Iron Mountain & Southern Railway Company on September 1st, 1914; that, said witness, was the only notice he gave defendant, except what he gave verbally to the station agent. Witness paid the freight and got a receipted bill. As he remembered it, one of the jacks was tied in one end of the car and the other in the other end. They had to be tied or partitioned front each other and witness thought they had been tied....
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