187 Mo. App. 201 | Mo. Ct. App. | 1915
This is an action against a common carrier for damages caused by negligence in tbe transportation of two horses shipped at different times and under separate contracts from Fulton, Missouri, to Chicago, Illinois.
In tbe first count of tbe petition a negligent injury to a horse valued by plaintiff at $350 and shipped June 20,1912, is alleged and in tbe second damages, are prayed for tbe negligent injury of a horse shipped June 25,1912, and valued at $2000.
Tbe answer pleads that defendant is an interstate carrier, that tbe shipments in question were interstate shipments governed by tbe laws of tbe United States, that they were made pursuant to tbe terms and conditions of shipping contracts filed with, and. approved by, the Interstate Commerce Commission, and on a posted rate based on a declared valuation of $100 for each horse,, and that under said contracts plaintiff is not entitled to recover because of bis
Plaintiff recovered judgment in the circuit court on the first count for $300, and on the second for $160, and defendant appealed.
The proof shows beyond question that each horse was shipped and carried under the terms and conditions of a written contract of a form filed with, and approved by, the Interstate Commerce Commission and on a rate duly filed, published and posted, which was based, in part, on the declared.value of- $100 for each animal. One of the provisions of the contract required that in the event of loss or damage to the horse during the transportation, plaintiff, within five days after it was unloaded at Chicago, should give notice in writing to defendant of his claim therefor, “and in the event of his failure so to do, said second party (plaintiff) hereby releases and shall be barred from all claims of any ldnd or character against said first party arising out of any injury or damage to said stock..’ ’
The horse first shipped was unloaded at Chicago, June 21, 1912, in an injured condition and the second horse was unloaded June 26th in like condition. No written notice or.claim was given by plaintiff to defendant before July 11,1912. Both horses were shipped back to Pulton early in July and the attention of the station agent of defendant at that place was called by plaintiff to the injuries the horses had sustained during their carriage to Chicago, but not until more than five days had elapsed from the date on which the last horse had been unloaded at Chicago.
In the Federal decisions provisions for the giving of notice of injury, such as that in the contracts before us, are construed as reasonable and as being in the nature of a regulation as distinguished from a restriction of the carriers ’ common law liability, and in that view it is immaterial whether the shipping contract is in form and substance a general or a special contract supported by the consideration of a reduced rate. In McElvain v. Railroad, supra, the St. Louis Court of Appeals, in an action for negligent delay in
And in the ease of Johnson Grain Co. v. Railroad, supra, we said: “The stipulation for the filing of a written claim of loss within a specified and reasonable time, being in the nature of a reasonable regulation and not of a restriction of the carrier’s common-law liability’, loes not depend upon a special consideration, such as a reduced rate, but is an agreement that may be incorporated in a general form of bill of lading. [Ginn v. Transit Co., 85 Fed. 985; Ingram v. Weir, 166 Fed. 328; Railway v. Harriman, supra.] . While it is true the Supreme Court in the case last cited was dealing with a reduced rate shipping contract we interpret the excerpt we have quoted from the opinion as approving the doctrine of those cases which hold that such contractual limitations should be classed as mere regulations. Our own courts have adhered to the opposite rule. [George v. Railroad, 214 Mo. 551.] But inasmuch as the Supreme Court of the United States have construed the Hepburn Act, as amended, to mean
The Federal decisions do not recognize as applicable ' to interstate shipments the rule that such contractual provisions must be reasonably enforced and not applied in instances where the carrier, after the expiration of the stated time for notice, has undiminished opportunities for investigating the facts relating to the- nature and extent of the alleged injury. That rule still obtains in this State in intrastate shipments. [Richardson v. Railroad, 149 Mo. 311; Holland v. Railroad, 139 Mo. App. 702; McKinstrey v. Railroad, 153 Mo. App. 546; Burns v. Railroad, 151 Mo. App. 573.] But the Federal courts hold that where a stipulation for notice provides a reasonable time for giving it, “the failure to give the notice is fatal to plaintiff’s right to recover.” [Clegg v. Railroad, 203 Fed. 971, and cases cited.]
When plaintiff permitted five days to pass after each horse was unloaded without compliance with the stipulation, he lost his right to recover and his subsequent exhibition of the injured animals to the station agent at Fulton, with a recital of the causes of the injuries, did not have the effect of restoring the lost right to him. Formal written notice given at that time would have been unavailing and certainly informal oral information was just as ineffective.
The judgment is reversed.