143 Mo. App. 675 | Mo. Ct. App. | 1910
This is an action by the plaintiff to recover damages alleged to have been sustained by him by reason of the defendant’s negligent delay in trans
The answer, in addition to a general denial, alleged that on the 14th day of October, the time the contract of shipment was made, defendant had in force two legal rates applicable to the transportation of live stock from Springfield, Missouri; that one of said rates applied on shipments undertaken at carriers’ risk, while the other* was applicable on shipments wherein the shipper, for the purpose of availing himself of a reduced rate, entered into a special contract covering said shipment, and the matters incident thereto; that the shipment in question was made under the latter rate, and a special contract entered into relating thereto; that in this special contract, it was provided that as a condition precedent to recovery for any damages for delays, loss or injury to live stock covered thereby, the shipper should give notice in writing of his claim therefor to some general officer, or the nearest station agent of the company, or to the agent at place of destination, before the stock was removed from the point of shipment, and before it was mingled with other stock, and requiring the written notification to be served within one day after the delivery of such stock at destination, and that a failure to comply with the provisions óf this clause should be a bar to any and all claims.
The answer alleged the non-observance of this clause in the contract, and that no notice of any claim was given the company, as required by said contract. The evidence fails to show the giving of such notice.
The bill of lading and contract under which the shipment was made, contained the provisions set out in the answer, and also recited that the shipment was at the rate of twenty cents per hundred, and that it was a special and less rate than the one charged for shipments transported at carriers’ risk, and in consideration of which reduced rate, the special contract was executed.
The trial court refused to recognize the validity of this contract and rendered judgment in favor of the plaintiff in the sum of thirty-three dollars, from which the defendant appealed to this court.
The point is so thoroughly settled in- this State by the above cases, that it will not be necessary to further discuss the same.
As the case will probably be retried, it is proper to consider the further question presented.
The plaintiff offered .in evidence an instrument purporting to be an account rendered to him by the National Stock Yards Co. of East St. Louis, Ill., of the disposition of his cattle, showing the names of the purchasers, the numbers, weight and price received therefor. He testified that he received it through the United States mail from St. Louis, Mo.
The defendant objected to the introduction of the paper, for the reason that it was hearsay, secondary evidence, and was not properly identified. The court overruled the objection, and appellant saved its exception thereto. The identical question is passed on in Hess v. The Railroad Co., 40 Mo. App. 202, and the court held the same not competent, and we approve that holding.
The plaintiff may be able to prove on another trial that the rate named in the contract -yas not a special rate, but was the usual rate charged for such shipments, and we will reverse and remand the cause in order that he may have an opportunity to do so.
