Vaughn & Vaughn v. Quincy, O. & K. C. R. Co.
| Decision Date | 09 January 1939 |
| Docket Number | No. 19330.,19330. |
| Court | Missouri Court of Appeals |
| Parties | VAUGHN & VAUGHN v. QUINCY, O. & K. C. R. CO. et al. |
Appeal from Circuit Court, Adair County; Emert C. Hilbert, Judge.
"Not to be published in State Reports."
Action by Vaughn & Vaughn against the Quincy, Omaha & Kansas City Railroad Company, the Chicago, Burlington & Quincy Railroad Company, and another, on named defendants' common-law liability as common carriers, and on their negligent failure to deliver an interstate shipment of cattle. From a judgment for plaintiff, named defendants appeal.
Judgment reversed.
W. E. Shirley, of Kirksville, and H. J. Nelson and J. A. Lydick, both of St. Joseph, for appellants.
Phillip J. Fowler, of Kirksville, for respondent.
SPERRY, Commissioner.
Vaughn & Vaughn, a partnership, sued defendants, the Quincy, Omaha & Kansas City Railroad Company, the Chicago, Burlington & Quincy Railroad Company, and Bowles Livestock Commission Company. From a judgment for plaintiff, the two first named defendants appeal. The parties will be referred to as plaintiff and defendants.
The cause of action against defendants herein is based on their common law liability as common carriers, and on their negligent failure to deliver a carload of cattle shipped from Green Castle, Missouri, to Bowles Company in Chicago, Illinois, the consignee. The shipment was interstate, and was delivered to a company other than Bowles Company, allegedly resulting in damages to plaintiff. Plaintiff has filed no brief.
Defendant offered a demurrer at the close of the evidence and the court's refusal to sustain same is urged as erroneous for two reasons, the first of which is that of failure of plaintiff to allege in its petition, or to offer any evidence tending to prove, that it had ever notified defendants in writing, as it was required to do under the terms of the bill of lading introduced by it in evidence, within nine months after delivery should have been made, of defendant's failure to deliver and of plaintiff's claim for damages by reason thereof.
This court, speaking through Trimble, J., in Johnson v. Missouri Pacific Railway Company, 187 S.W. 282, loc. cit. 283, held that a suit based on a shipment in interstate commerce, such as this, "is governed exclusively by federal law and federal decisions." The St. Louis Court of Appeals, in Mt. Arbor Nurseries v. American Ry. Express Co., 221 Mo.App. 241, 300 S.W. 1051, loc. cit. 1052, held that a misdelivery, or delivery to a wrong party, and a non-delivery, or total failure to deliver or account for the goods, are, legally, identical; and that both propositions are governed by the same rule of law. The case before us is one of mis-delivery.
In Johnson v. Missouri Pacific Ry. Co., supra, 187 S.W. loc. cit. 283, we held that proof of the giving of written notice is essential in a case of this kind. The St. Louis Court also held, in Mt. Arbor Nurseries v. American Ry....
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