63 Mo. 314 | Mo. | 1876
delivered the opinion of the court.
This was a suit brought in the circuit court of Jackson county, for the recovery of damages to plaintiff’s cattle, alleged to have been occasioned by the negligence of defendant, in its shipment of them, as a common carrier.
The petition states, in substance, that defendant received of plaintiff, for transportation, two hundred and fifty head of cattle, under a contract in which was the following stipulation: “No claim for loss or damage on live stock will be allowed unless the same is made in writing, before or at the time the stock is unloaded.” It states that the. cars, by neglect of defendant, were thrown off the track and three of the cattle killed and the remainder injured, and their transportation delayed seventeen hours; that from the time of the accident till the train started, the whole of plaintiff’s time was engaged in getting tbe cattle, that were thrown down, in the cars, up on their feet; that when the cattle were unloaded plaintiff was required to assist in unloading them, and that he had no time or
The answer of defendant denies all the material allegations of the petition, and sets out at length the contract containing the stipulation as to claim for damages above quoted, and alleges that plaintiff did not give the notice required. Plaintiff filed his replication denying the allegations of the answer.
On the trial a demurrer to the evidence o£ plaintiff was sustained, whereupon he took a non-suit with leave to move to set the same aside. The motion of plaintiff to set aside the non-suit and grant a new trial was overruled, and final judgment entered, from which the plaintiff has appealed.
It is insisted by the plaintiff’s counsel that the court erred in its action, first, because the stipulation that “no claim for loss or damage on live stock will be allowed unless the same is made in writing, before or at the time the stock is unloaded,’’was unreasonable and void; second, that the evidence offered showed a substantial compliance with the contract, and waiver as to the time in which the notice was to be given.
The rigid and severe rules of the common law, which held common carriers liable as insurers, and responsible for all loss to articles confided to them for shipment, unless such loss was occasioned by the act of God, or a public enemy, have been so far modified by an unbroken line of decisions as to allow carriers to limit their responsibility by special contract with their employers, provided such contract does not attempt to relieve him from liability for losses incurred by their negligence or misconduct. It is too late to inquire into the policy or impolicy of this infringement on the rules of the common law. It is the established law, and is so understood by those engaged in the business of common carriers and those who patronize them, and sound policy requires it to be adhered to. (Ketchum vs. American Express Co. 52 Mo. 390; Levering vs. Union Trans. & Ins. Co., 42 Mo. 89; Reid vs. St. L., K. C. & N. R. R. Co., 60 Mo. 199.) It has
When the fact is considered that cattle, when shipped, upon reaching their destination are usually commingled with other cattle, sold for slaughter, or reshipped to other points, it is not unreasonable for the carrier to stipulate with the shipper, that before claim for damages will be allowed he shall give proper notice, in writing, of his claim, at or before the unloading of the stock, or in such time thereafter as will afford the carrier an opportunity of inspecting the stock before they are commingled with other cattle, slaughtered, sold or reshipped, and thus protect himself from fictitious and unfounded claims. While, upon grounds like these, such special agreements are valid and binding, when they are reasonable, they should be reasonably and justly construed in their application to each case as it arises, in determining the question whether the required notice, both as to form and time, has been substantially complied with, or whether delay has been occasioned in giving the notice, by the acts of defendant, or whether compliance, as regards time or form, has been waived.
If, by the acts of defendant in this case, which produced an injury to the cattle, the shipper or plaintiff had been rendered insensible, and remained so for three days after the stock had been unloaded, and then presented his claim for damages, in writing, could the defendant be permitted coldly to reply, that the notice was not in compliance with the contract, and thus escape liability? We apprehend not. Such an application or construction of it would neither be reasonable nor just. Does the evidence in this case, to which the demurrer of defendant was sustained, establish facts which show a substantial compliance with the spirit of the contract, and the reason of it, or that delay in the mere time of giving the notice was occasioned by the acts of defendant, and that such notice, as to time and form, was
If the above facts tend to show such a compliance with the terms of the contract as not to defeat the object for which it was
The cattle in question by the consent of defendant and without the payment of freight were removed sixteen miles to the farm of plaintiff; the place they were in being an unfit place for cattle in their condition. By this removal the inspection of the cattle was not rendered difficult or impossible, but only more inconvenient, and this inconvenience was self-imposed, as defendant had a right to retain them till the freight was paid. This being considered in connection with the verbal notice given at the time the cattle were unloaded, and the fact that plaintiff was told by the agent of defendant having the cattle in charge, that it was unnecessary to go to the office of defendant that night, and with what was" said to plaintiff by the freight agent at the time the written claim for damage was presented to him, and in connection with the fact that the agent at Lawrence after receipt of written claim made no objection as to time, but placed his refusal to pay on the ground that the cattle were not damaged, brings this case within the principle decided in the case of Philips vs. Protection Ins. Co., 14 Mo. 167, and Russell vs. State Ins. Co., 55 Mo. 585, and these facts should have gone to the jury for the purpose of showing substantial compliance, and waiver on the part of defendant as to the timeliness of the demand.
The first case above referred to was a suit founded on a policy of insurance in which it was required that in the event of loss the insured should forthwith give notice to the insurer; and judge Napton, remarked, “ that it is difficult to lay down general rules on a question of waiver of notice,"and it is better that each case should stand on its own peculiar facts. We are not disposed to
The case of Russell vs. State Ins. Co., was a suit founded on a policy containing a stipulation that the assured should furnish to the insurer, within thirty days after loss, a particular account or proof of loss.
The notice was not given till after the expiration of thirty days and the court says ; “If the delay was occasioned by the act of defendant, or if the stipulation as to time of furnishing notice was practically rescinded and treated by the defendant as of no importance, such delay beyond the precise time fixed in the policy could surely be explained at the trial, and in reality was proof of the actual performance of the condition precedent, though not exactly within the time fixed by the policy. Time is not usually of the essence of any contract, and if it were, the party performing it may surely show that delays were occasioned by the acts of the party requiring the performance.”
We think that the evidence ip. this case tended to show that the acts of defendant did occasion delay in giving the notice, and also that the agreement as to the time in which the written claim for damages was to be made was practically rescinded and treated by defendant as of no importance.
It also tended to show a substantial compliance with the spirit and reason of the agreement upon which alone the validity of such agreements are upheld and sustained at all.
Opposed to this view we have been cited to the case of Goggin vs. Kansas Pacific Railway Co., (12 Kan. 416).
There was nothing to show that the delay in giving notice was brought about by any act of defendant, or that the time in which it was to be given was practically rescinded and treated as of no importance by defendant. In that case the court declares that the phrase “ before or at the time of unloading,” does not mean that it must be at the identical moment, but so immediately that the object sought by the notice can be attained.
Erom this expression the conclusion follows that if the notice had been given in such time that- the object of the notice, viz : an inspection of the cattle before they were placed beyond the reach of inspection by defendant was accomplished, it must have been a compliance with the agreement.
In the case before us the evidence tended to show that verbal notice was given at the time of unloading ; that defendant’s agent told plaintiff it was unnecessary to go to -the office that night; that written claim was presented in three days after the cattle by consent of defendant had been removed sixteen miles to plaintiff’s farm, where an inspection of the cattle could have been had; that when presented, plaintiff was referred to the agent at Lawrence for settlement who put his refusal to settle the same, not on the want of timely notice but, on the ground that the cattle were not damaged — thus implying that he had investigated the claim.
We think that the court erred in sustaining the demurrer to the evidence, and therefore the judgment will be reversed and the cause remanded,