St. Louis, Iron Mountain & Southern Railway Company v. Shepherd

• Decision Date: 01 June 1914
• Docket Number: 14
• Citation: 168 S.W. 137,113 Ark. 248
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SHEPHERD
• Court: Arkansas Supreme Court

168 S.W. 137

113 Ark. 248

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. SHEPHERD

No. 14

Supreme Court of Arkansas

June 1, 1914

Appeal from Boone Circuit Court; Geo. W. Reed, Judge; reversed.

STATEMENT BY THE COURT.

This is an action by C. W. Shepherd against the St. Louis, Iron Mountain & Southern Railway Company to recover damages alleged to have been sustained in a shipment of cattle from Bergman, Arkansas, to Kansas City, Missouri. The facts are as follows:

On the 9th day of November, 1912, C. W. Shepherd entered into a written contract with the railroad company for the shipment of the cattle, in which the railroad company is called "the first party" and Shepherd "the second party." The contract recites that the rate charged for the shipment of live stock under the contract is lower than the rate charged if the shipment is not made under the contract. The sixth clause of the contract is as follows:

"Sixth. 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 to 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 one day after the delivery of stock at destination, to the end that such claim may be fully and fairly investigated; and that a failure to fully 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."

The cattle were shipped from Bergman about 8 o'clock on the morning of the 9th of November, 1912, and arrived at the stock yards in Kansas City, where they were to be unloaded about 5 o'clock in the evening on the 10th inst. Other cattle in the same train were at once unloaded in the stock yard so they might be fed and watered. The cattle in question, according to the testimony of the plaintiff, were not unloaded until about 8 o'clock of the morning of the 11th inst. The plaintiff stated that the employees at the stock yard refused to unload them until that time for the reason that they claimed that the waybill had not been delivered by the railroad company and that they could not unload the cattle until they received the waybill. The plaintiff further testified: I went to see a claim agent of the railroad company and related to him the circumstances and condition of the cattle and asked him to investigate. I told him that I intended to claim damages. He told me to put my claim in writing and told me that these accidents could not be helped; said for me to let it go and take it up with the company's offices at home. I never gave any agent of the company any written notice of my intention to claim damages. I did inform the claim agent that the cattle were in the pen at the stock yard, and I wanted him to go down and look at them.

The plaintiff also testified as to the loss in weight of the cattle in consequence of the delay in unloading them, and as to the amount of loss sustained by him in consequence thereof.

A witness for the defendant testified that he was engaged in unloading and counting stock that came into the Kansas City stock yard; that he knew about the particular car of stock in controversy; that the car was received in the Kansas City stock yards at 5:25 o'clock in the afternoon, and that they were unloaded in about twenty minutes thereafter; that there was no waybill accompanying them; that the rule of the stock yard about feeding and watering the night on which the cattle are received is that if the shipper wants them watered and fed the stock yard company does this for him; that if he waters them himself, the stock yard company feeds them.

The jury returned a verdict for the plaintiff, and the defendant has appealed.

Judgment reversed, and cause dismissed.

E. B Kinsworthy, McCaleb & Reeder and T. D. Crawford, for appellant.

1. Notice of intention to claim damages is a prerequisite to recovery. It is a condition precedent to recovery of damages for loss or injury that notice be given to some general officer or station agent. 63 Ark. 331; 67 Id. 407; 82 Id. 353.

2. In the absence of a statute parties may stipulate for a period of limitation shorter than that fixed by statute. 25 Cyc 1017; 101 Ark. 310; Acts 1907, p. 557; Am. Cas. 1913, E. p. 868; 82 Ark. 839; Ib. 469; 83 Id. 502. The only exception is, the time must not be unreasonable. 227 U.S. 657; cases, supra. Kirby's Dig., § 5083, does not apply.

C. W. Shepherd, pro se.

1. Due notice was given to an agent of the company. The only object of the notice is to afford the company a fair opportunity to investigate the claim. 63 Ark. 331; 70 Id. 401. There was a substantial compliance with the provision as to notice. 75 S.W. 782; 94 Id. 735.

2. The suit was brought within six months.

OPINION

HART, J., (after stating the facts).

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