118 Mo. App. 500 | Mo. Ct. App. | 1906
Plaintiff shipped a lot of cattle with defendant from Maryville, Missouri, to Omaha, Nebraska. They were injured and one of them, a bull, was killed while en route. The petition charges that the defendant was guilty of negligence. The case was submitted to Judge Craig, who became sick before a decision, when the submission was set aside and the cause submitted to Judge Burnes of the Fifth circuit, who rendered judgment for the defendant on the ground that no notice of loss or damage had been given as required by the contract of shipment.
It appears that the contract provided that no claims for loss or damages should be allowed against defendant unless a written claim for it was made within ten days
Plaintiff seeks to avoid the effect of that portion of the contract on the authority of Ward v. Railway, 158 Mo. 226, and Richardson v. Railway, 62 Mo. App. 1. In the Ward case, the provision of the contract was that “claims for damages growing out of the shipment should be reported by the consignee to the carrier within thirty-sis hours after he had been notified of the arrival of the freight.” While no written notice was given, the defendant accepted a verbal notice without objection and promised to and did begin a search for the missing freight, going so- far as to send a special agent to Pitts-burg to investigate “the matter from that end of the line.” Other reasons why notice was not necessary in that case are given, but what we have stated is enough to show that that case is wholly unlike this. So of the Richardson case. There the injured animal was taken by the railway company, conveyed to a distant point and killed before Richardson knew of the injury.
We are therefore left without power to aid the plaintiff in his neglect to comply with the contract of shipment and must affirm the judgment.