123 Kan. 600 | Kan. | 1927
The opinion of the court was delivered by
This is an action for damages resulting from delay in shipment of live stock. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed.
The shipment consisted of one car of live stock — 11 cattle and 65 hogs — from Piqua, Woodson county, to the stockyards at Kansas City, Mo. The shipping contract was signed after the car was loaded. The car was loaded about noon October 6, and should have reached destination at 7:30 o’clock the next morning. It reached destination at 9:30 — about two hours late. When the car was unloaded three of the hogs were dead. The damages claimed were (a) for the dead hogs, $63.36; (6) for the bad appearance of the animals and their not being permitted to fill (perhaps this included addi
The shipping contract provides, among other things, as a condition precedent to the shipper’s right to recover:
“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.”
Appellant makes the point that there was no notice given in compliance with this provision of the shipping contract. This point is well taken and is determinative of this appeal. The provision for notice is a condition for recovery. The burden of showing that notice was given was on the shipper, and if he failed he cannot recover. (Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438.) The railway company cannot waive the requirement of written notice of the claim, and without such written notice there can be no recovery, although the carrier may have had actual and complete notice of the claim of the shipper. (Abell v. Railway Co., 100 Kan. 238, 164 Pac. 269.) When a shipping contract contains the conditions precedent to recovery, the shipper cannot recover without showing a compliance with such conditions. (Salmans v. Railway Co., 111 Kan. 297, 206 Pac. 1111. See, also, Georgia, Fla. & Ala. Ry. Co. v. Blish Co., 241 U. S. 190; Grocery Co. v. Payne, Dir. Gen., 94 W. Va. 273; Stand Comb. Thread Co. v. Pa. R. R. Co., 88 N. J. L. 257.)
Appellee argues that the action was not brought upon a contract, for the reason that this car was orally ordered, and under such oral order was set in by the company, the stock loaded and accepted by said railroad company and immediately moved out of the yards, after which some paper was signed by the shipper. He had no option in the matter, and had to sign whatever was offered to him. It was
Appellee argues that, even though the shipment was under the written contract, no notice was necessary. This depends upon the character of damages sought to be recovered. If damages are sought for decline in market, notice to the delivering carrier, before live stock is removed from the possession of the carrier and delivered with other stock, is not necessary. (Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421.) But nothing was allowed for decline of market in this case; hence, this feature of the case need not be further considered.
The provision, however, covers loss or damage to the live stock during transportation, and manifestly covers any shrinkage of the live stock during transportation. (Cornelius v. Railway Co., 74 Kan. 599, 604, 87 Pac. 751; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132.) It also covers animals that died or were crippled in transportation. (Abell v. Railway Co., 100 Kan. 238, 164 Pac. 269; Kirby v. Missouri-K.-T. Rld. Co., 121 Kan. 275, 246 Pac. 1005.) The only damages allowed in this case were of the character for which the notice provided in the shipping contract was required.
In January following the shipment the attorney for plaintiff had correspondence with the defendant’s representative which, if regarded as a presentation of the claim, could not, of course, comply with the section of the shipping contract above quoted. The correspondence disclosed that defendant had given a number to plaintiff’s claim and had previously had some correspondence with another attorney with reference to it, but when the claim was first filed, and by whom, is not disclosed, and certainly there is nothing in the
It necessarily follows that the judgment of the court below must be reversed with directions that judgment be entered for defendant. It is so ordered.