Sims v. The Missouri Pacific Railway Company

• Decision Date: 05 January 1914
• Citation: 163 S.W. 275,177 Mo.App. 18
• Parties: JOHN N. SIMS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

163 S.W. 275

177 Mo.App. 18

JOHN N. SIMS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

January 5, 1914

Appeal from Cooper Circuit Court.--Hon. J. G. Slate, Judge.

AFFIRMED.

Judgment affirmed.

Roy D Williams for appellant.

(1) Plaintiff, for a valuable consideration, agreed to give notice within one day after the stock reached destination, of any claim he might have. This notice could have been given as readily within one day as within two days. This stipulation is valid and binding. McKinstrey v. Railroad, 153 Mo.App. 552; McElvain v. Railroad, 151 Mo.App. 141; Moore v. Railroad, 143 Mo.App. 675; Shelton v Railroad, 131 Mo.App. 560; Freeman v. Railroad, 118 Mo.App. 526; Merewether v. Railroad, 128 Mo.App 291; Railroad v. Harriman, 227 U.S. 657. (2) The construction of the Carmack Amendment to the Hepburn Act has been put at rest by Express Co. v. Crutsinger, 226 U.S. 491, 33 S.Ct. 497; Railroad v. Carl, 227 U.S. 639; Railroad v. Harriman, 227 U.S. 657. (3) The construction of this law is a Federal question, and the opinion of the Supreme Court of the United States is binding and has been followed by our courts in Mfg. Co. v. Wabash, 156 S.W. 830; Joseph v. Railroad, 157 S.W. 837; McElwain v. Railroad, 158 S.W. 465.

John Cosgrove and Daniel W. Cosgrove for respondent.

(1) There was no reduced rate offered or given to respondent. There was nothing said about rates at all until after the hogs had been loaded and taken charge of by appellant. The rate mentioned in the contract was not the rate collected. It was the usual and customary rate charged to all shippers of hogs from Blackwater to National Stockyards. Regular and customary rates are not special tariff rates. Bescheer v. Railroad, 151 Mo.App. 80; McFadden v. Railroad, 92 Mo. 343; Moore v. Railroad, 143 Mo.App. 678. The appellant by its conduct, is not entitled to raise a Federal question on this record, nor is any ruling in this case contrary to the law as announced by the Supreme Court of the United States in Railroad v. Harriman, 227 U.S. 657, or the other cases of the Supreme Court of the United States.

OPINION

JOHNSON, J.

On July 4, 1911, defendant, a common carrier, received seventy-eight fat hogs from plaintiff for transportation from Blackwater, Mo., to the National Stockyards at East St. Louis, Ill. The shipment left Blackwater in the afternoon and had the transportation been accomplished in the usual time, would have arrived at the stockyards early the next morning in time for the market of that day but it did not arrive until eleven o'clock. Eight of the hogs were dead and the remainder could not be put on the market until the following day. Plaintiff alleged in his petition that the damages he sustained in consequence of the death of the eight hogs and of the injury to the others were caused by negligence of defendant, as follows: First, that the car containing the hogs was switched at Blackwater onto an inclined track leading to a coal chute and kept there several hours, with the result that the hogs piled up at the lower end of the car and became overheated; second, that defendant ran the hogs through to the stockyards without throwing water over them to cool them off, and, third, that they were negligently exposed to the sun (the weather was very hot) in the railroad yards at East St. Louis.

The answer pleaded compliance by defendant with the Interstate Commerce Act and amendments thereto and interposed a number of defenses based on the provisions of a written contract for the transportation.

The reply put the question of the validity of these provisions in issue and also pleaded a waiver. Plaintiff introduced evidence tending to prove the pleaded acts of negligence and their causal relation to the damage sustained by him. Defendant's evidence shows compliance with the requirements of the Interstate Commerce laws and that at the time of the shipment its tariffs were duly filed and posted. Further it was shown by defendant that before the shipment left Blackwater the parties entered into a written contract which recited: "That for the considerations and mutual covenants and conditions herein contained, the said first party will transport for the said second party the live stock described below, and the parties in charge thereof, as hereinafter provided, viz.: One car, said to contain seventy-eight head of hogs consigned to Stewart, Son & McCormick, Nat'l Stock Yds., E. St. Louis, from Blackwater, Mo., station to destination if on this railway or its leased or operated lines, and there delivered to consignee, or to the proper junction, if the destination is on another road, and there deliver to a connecting carrier, at the rate of 17c per cwt., subject to minimum weights and length of cars provided for in tariff, said rate being less than the rate charged for shipments transported at carrier's risk, for which reduced rate and other considerations it is mutually agreed between the parties hereto as follows. . . ."

Then follow certain stipulations from which we quote: "Third: That the second party shall assume all risk and expense of feeding, watering, bedding and otherwise caring for the live stock covered by this contract while in cars, yards, pens, or elsewhere, and shall load and unload the same at his own expense and risk." . . . "Fifth: That as a condition precedent to the recovery of any damages for any loss or injury to live stock covered by this contract for any cause, including delays, the second party will give notice in writing of the claim therefor to some general officer or to the nearest station agent of the first party, or to the agent at destination or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of the stock at destination, to the end that such claim may be fully and fairly investigated; and that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims, and to any suit or action brought thereon." . . . "Eleventh: That no suit or action against the first party for loss, damage or delay to or of the live stock shipped under this contract shall be sustainable in any court of law or equity, unless such suit or action is commenced within six months next after the cause of action shall occur; and should any suit or action be commenced against the first party after the expiration of six months, the lapse of time shall be constituted conclusive evidence against the validity of such claim, any Statute of Limitations to the contrary notwithstanding. Twelfth: That in making this contract, the undersigned owner, or other agent of the owner, of the stock named herein, expressly acknowledges that he has had the option of making this shipment under the tariff rates, either at carrier's risk or upon a limited liability, and that he has selected the rate and the liability named herein and expressly accepts and agrees to all the stipulations and conditions named herein."

Further the contract provided that the rate stated in the opening paragraph applies only to shipments "made at the owner's risk with limitation of liability on the part of the railroad company as common carrier" and fixes a higher rate "on shipments made without limitation of carrier's liability at common law."

It appears that plaintiff did not notify defendant of his claim for damages until July 7, 1911, two days after the arrival of the hogs at the stockyards and further that this suit was not commenced until April 20, 1912. To meet the defenses urged by defendant that the notice was not given in the time stipulated in the third paragraph of the contract and that the suit was brought after the expiration of the time allotted in the eleventh paragraph, plaintiff introduced in evidence a letter dated April 2, 1912, sent by defendant to the agent of plaintiff, as follows:

"With reference to above claim filed by you on July 7th in favor of J. N. Sims, Blackwater, Mo., amounting to $ 87.23 on car hogs shipped from that point July 4, 1911, concerning which you have written the undersigned and called at this office innumerable times.

"Our position in connection with this claim has not been made known to you, because you will remember that we lost original papers and you very kindly furnished us with a duplicate set and only recently has our investigation been completed.

"The unloading certificate you sent us shows hogs were unloaded at 11:40 a. m. on July 5th, and sold on that day's market. While the unloading at National Stockyards was somewhat late we have developed that the car was at National Stockyards ready to be unloaded around 9 a. m., but on account of a congestion at your point, the unloading was not commenced until after 11 a. m. Doubtless you will recall that July 5th in point of receipts was a record breaker at National Stockyards, and the heavy receipts brought about this confusion and necessarily quite a number of cars were delayed and had to wait their turn at the landing. Added to this July 5th was one of the hottest days last summer, and nearly every car that arrived had from two to more dead hogs, the death of which was brought about by the excessive heat. There was absolutely no delay in the transportation between Blackwater and St. Louis and the delay with which hogs met at National Stockyards is, of course, chargeable to above condition.

"I wish to say that we have paid no claim for hogs or cattle delayed after they left...