80 Mo. App. 597 | Mo. Ct. App. | 1899
The plaintiff sues for damages caused by delay in the shipment of two car loads of lambs from Mexico to Chicago. The following facts seem to be undisputed. The stock was started from Mexico about eight o’clock on the morning of July 19, 1897. The train was then two hours behind its schedule . time. The cars containing the lambs reached East St. Louis too late for the afternoon stock train to Chicago over defendant’s road. The cars were delayed at East St. Louis from about 5 o’clock p. m. until 9:05 p. m., when they were attached to a mixed train bound for Decatur, Illinois. The sheep arrived at Decatur at 3:30 a. m., July 20, and remained there until 12:20 p. m., when another train was made up and the transportation resumed, arriving at Chicago at 11:30 p. m. The schedule or usual time from Mexico to Chicago is between twenty and twenty-four hours, and if connection had been made at East St. Louis with the
The contention of defendant, in support of the instruction of the court, that no negligence was proved or could be attributed to the defendant in the transportation of the sheep, is not borne out by the record. The shipment was under a written contract limiting, in some respects, the common law liability of the defendant as a common carrier, and also placing a limitation on the authority of its local agents. This contract was entered into in consideration of a lower rate of freight. One of' its provisions is that the agénts of the company were prohibited from contracting for the transportation and delivery of live stock within any specified time. No claim is made by plaintiffs in opposition to this clause of the contract. Their contention is, and they so testified, that the defendant’s agent at Mexico represented to them that the train upon which they shipped, although late, had time to get to East St. Louis before the departure of the live stock train to Chicago, and that relying on this representation they made the shipment on that day. The evidence of the defendant shows, that this representation, if made, was false. The train made schedule time from Mexico to East St. Louis,-and it is conceded that it arrived at the latter place too late for the Chicago
Put the plaintiffs insist that the notice of the claim for damages applies only to damage to the animals, and not to damage suffered by plaintiffs on account of the decline in the market. Erom this standpoint the insistence is that there could be a recovery for this item of damage, although the notice was not given. "We are referred to Leonard v. Railroad, 57 Mo. App. 300, as authority for this contention. The decision in that case is no authority here, for the reason that the two contracts are different. There the contract contained this clause, to wit: “It is further mutually agreed that should loss or damage of any kind occur to the property specified in this contract while such property is in the possession of said first party, the second party shall in five days after such loss or damage has accrued give notice in writing of his claim to the first party.” The damages mentioned are damages to the property itself. This is the plain reading of the contract. We think that the Kansas City Court of Appeals rightly applied and confined the requirements of this clause of the contract to such damages. The contract we have here is broad and comprehensive, and covers all claims for damages arising out of delay in the transportation of the sheep. The language is, “No claim for damages which may accrue to the second party under this contract shall be allowed * * * unless a claim for such loss or damage shall be made in writing, verified by affidavit * * * and delivered to the general freight agent of thé first party at his office in the city of St. Louis within five days from the, time the said stock is removed from said cars, etc.” The judgment of the circuit court will be affirmed.