24 S.W.2d 290 | Ky. Ct. App. | 1930
Reversing.
This is a shipper's action against a delivering carrier for injuries to live stock transported in interstate commerce. The Missouri Pacific Railroad Company received at Kansas City, Mo., several carloads of cattle consigned to C.T. Forkner at Winchester, Ky. It issued a uniform live stock contract upon each shipment which came into the possession of the consignee. Among the "terms and conditions" of the contract printed on the back of each copy was clause (c) of section 4, which reads as follows: "Before the live stock is removed from the possession of the carrier or mingled with other live stock, the shipper, owner, consignee or agent thereof shall inform in writing the delivering carrier of any visible or manifest injury to the live stock."
Forkner sued the Louisville Nashville Railroad Company to recover damages for injuries to the cattle. He alleged the execution of the contracts by the Missouri Pacific Railroad Company, at Kansas City, and the delivery to it of the cattle; that the defendant was the connecting carrier to make delivery at Winchester, Ky., and, while in charge of the cattle, it carelessly and negligently caused injury to them in transit; that the cattle were lacerated, torn, bruised, scarred, and damaged; that the injuries to the cattle were caused by the careless and negligent operation by the defendant of the cars containing them, and that some of the cattle, as a result of the injuries, had died shortly after being unloaded. The averments were substantially repeated respecting the cattle contained in each car for which a bill of lading was issued. A demurrer to the petition was interposed by the defendant and sustained by the court. An amended petition alleged that the cattle were unloaded at night when plaintiff could not see or know the nature or extent of the injuries to the cattle, and that the ones that had died suffered injuries not then visible. The demurrer to the petition as amended was insisted upon, and the court adhered to its ruling. Plaintiff pleaded no further, and his petition was dismissed, resulting in this appeal.
It is said by the parties in briefs that the demurrer was sustained on the ground that plaintiff failed to allege that he had complied with clause (c) of section 4 of the contract already quoted. No question is raised respecting *581
the right of the court to determine that matter on demurrer to a petition silent in regard to it. Cf. Hoye v. Pennsylvania Railroad Co.,
In so far as the petition alleged that the cattle were lacerated, torn, and scarred, we see no room for doubt that it referred to injuries that must have been visible and manifest. As to the other injuries alleged and the death of some of the cattle by reason thereof, it is not clear that they were necessarily visible or manifest. However that may be, it is not necessary now to determine. The clause in question is but a covenant and does not purport to make its observance a condition precedent to a claim or action against the carrier for such injuries. Manifestly it could not do so in the light of the law plainly prohibiting such provision in cases where injury results from damages or delays caused by carelessness or negligence in loading or unloading, or while in transit. Barrett v. Van Pelt,
"Provided further, That it shall be unlawful for arty such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years: Provided, however, That if the loss or damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition predecent to recovery." 49 USCA sec. 20, par. 11 note.
The ambiguity in this act was removed by the opinion of the Supreme Court in the case of Barrett v. Van Pelt,
L. N. R. Co. v. Johnson,
It follows that the court erred in sustaining the demurrer to the petition.
The judgment is reversed.