250 F. 372 | 8th Cir. | 1918
About April 20, 1913, the Southern Pacific Company contracted with Theodore Olson to transport 30 carloads of cattle at a lower rate on a declared valuation from Huachuca, Ariz., to Missoula, Mont. The cattle were delivered to it on April 20, 1913; they were carried over the railroad of the Southern Pacific Company to Deming, N. M., thence over the railroad of the Atchison, Topeka & Santa Fé Railroad Company to Denver, Colo., and thence over the railroad of the Chicago, Burlington & Quincy Railroad Company to Billings, Mont., where they arrived and were unloaded on April 29, 1913, and where, on May 5th or 6th, Olson sold about 17 carloads of them, paid the freight and charges thereon on May 17, 1913, and some days later shipped the remaining 11 carloads of the cattle on to Missoula. As the cattle approached Raton on the Atchison, Topeka & Santa Fé Railroad, where it was necessary to unload them for feed, rest, and water, the weather became cold and stormy, and some of the cattle became chilled or frozen, so that by the 7th of May following about 90 of them had died. On April 23, 1913, as the train carrying the cattle was climbing up toward Raton, Olson telegraphed the superintendent of the Atchison, Topeka & Santa Fe Railroad Company thus:
“Bad run all the way from Albuquerque snow storm here now impossible unload at Raton cattle will chill to death up to you and company get cattle on feed La Junta.”
Before their arrival at Raton, Mr. Scott, a freight transportation inspector of the railroad company, came upon the train, stayed with it that night and the next day, and saw the condition of the cattle. Olson protested against unloading them at Raton, but Scott ordered them unloaded, fed, and watered in muddy pens, where several of them died that night. Olson told the agent of the railroad company at Billings, within 10 days after the damage to the cattle, that he should claim damages from the railroad company for the injury they had sustained by the negligence of that company in transporting them. By the live
“That in case any loss or damage shall have been sustained for which first party [the Southern Company] is liable, demand or claim for such loss or damage will be made by second party [Olson] on the freight claim agent of first party in writing, within ten days after unloading of the live stock, and that in event of failure so to do, all claims for loss or damage in the premises are hereby expressly waived, released, and made void.”
On May 17, 1913, the attorneys for Mr. Olson wrote and mailed at Council Bluffs, Iowa, a letter addressed to general claim agent of the Atchison, Topeka & Santa Fe Railway Company, at Chicago, Ill., in which they made a claim and demand upon the company, on behalf of Mr. Olson, for damages on account of its negligence in the transportation of the 30 cars of cattle. In August, 1913, they brought this action for these damages against the Southern Pacific Railroad Company, the Atchison, Topeka & Santa Fé Railway Company, and the Chicago, Burlington & Quincy Railroad Company. The companies defended on the ground that no claim or demand for the damages was made in writing within 10 days after the unloading of the cattle, and on the ground that the damages, if any, resulted from the fact that the cattle were too weak and unfit for shipping. During the course of the trial the court excluded evidence of the oral notice of Olson’s claim for damages given to the agent at Billings within 10 days after the unloading, held that the 10 days’ time for the giving of the written notice ran from the unloading at Billings on April 29, 1913, that the notice of May 17, 1913, was too late, and upon that ground directed a verdict for the defendants at the close of the plaintiff’s evidence. These rulings are assigned as error.
But this was an interstate shipment under an interstate contract, and ihe shipment and the contract are alike subject to and are governed by the act to regulate commerce (24 Stat. 379, 380, §§ 2, 3, 6 [U. S. Comp. St. 1916, §§ 8563, 8564, 8565, 8569]), the Carmack Amendment of the Hepburn Act of June 29, 1906 (34 Stat. 584, 595, c. 3591 [Comp. St. 1916, §§ 8604a, 8604aa]), and the principles and rules for the construction and application of these acts and of such contracts as that herein, which have been established by the federal courts (Adams Express Co. v. Croninger, 226 U. S. 491, 505, 506, 509, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. [N. S.] 257; Southern Railway Co. v. Prescott, 240 U. S. 632, 639, 640, 36 Sup. Ct. 469, 60 L. Ed. 836). The contract for notice of the claim or demand in writing within 10 days after the unloading was fair, just, and reasonable. That agreement, made by Olson with the Southern Company, the initial carrier, bound that company, the Atchison, Topeka & Santa Fé Railway Company, and the Chicago, Burlington & Quincy Railroad Company under the
“To permit a railroad company to plead the statute of limitations as against some and to waive it as against others would be to prefer some and discriminate against others in violation of the terms of the Commerce Act-which forbids all devices by which such results may he accomplished.”
Moreover, the telegram of April 23, 1913, was sent and received before the damage was inflicted. The knowledge of the situation of the cattle on that day and night and on the next day by Mr. Scott was by no means the equivalent of a notice by the shipper of his claim for damages. The extent of the damage was probably not then known, nor was it known that Olson would claim any damages, nor could any one perceive what part of the damages, if any, was chargeable to the railroad company. To hold that the oral notice to Mitchell at Billings was sufficient would be to abrogate the express terms of the contract which the parties voluntarily made. Chesapeake & Ohio R. Co. v. McLaughlin, 242 U. S. 142, 37 Sup. Ct. 40, 61 L. Ed. 207; Clegg v. St. Louis & S. F. R. Co., 203 Fed. 971, 973, 122 C. C. A. 273; Kidwell v. Oregon Short Line R. Co., 208 Fed. 1, 3, 125 C. C. A. 313.
The result is that there was no error in the trial of this case, and the judgment below must be affirmed.
It is so ordered.