120 Mo. App. 203 | Mo. Ct. App. | 1906
Plaintiffs, grain dealers doing business in Kansas City under the name of Samuel Hardin Grain Company, brought this action against defendant, a common carrier, to recover damages resulting from the alleged unreasonable delay in the transportation of a carload of corn chops from Kansas City to Babcock, Georgia. The shipment was received by defendant on March 27, 1903, and from the contents of the bill of lading issued therefor by defendant it is evident the contract made by the parties included the agreement of defendant to carry the shipment to its destination, a point beyond the line of defendánt, consequently defendant became liable for damages to the property that resulted from negligent delay in its transportation,
It was shown by plaintiffs that the corn chops left Kansas City on the day of shipment in good condition, that ten days were a reasonable time for the transportation, and that, had no longer time been consumed, the chops would have sustained no damage in transit. It was conceded that the shipment did not arrive at Babcock until April 21st, more than three weeks after it left Kansas City — and that on arrival the chops were found to be in a badly damaged condition from heating and fermentation. The legal effect of conditions in the bill of lading was to limit defendant’s liability on account of delays to those caused by negligence, but the facts and circumstances disclosed strongly tend to show a negligent origin of the delays that occurred. The issues were submitted to the jury, a verdict returned for plaintiffs, and judgment entered accordingly, from which defendant appealed.
The bill of lading contained a provision requiring notice of damage to be “reported by the consignee in writing to the delivering line within thirty-six hours after the consignee has been notified of the arrival of the freight at the place of delivery,” and it is argued by defendant that the action must fail because no such notice, was shown to have been given. Plaintiffs themselves were the consignees of the shipment, but on the bill of lading was indorsed the direction. “Notify Babcock Lb’r Co.” The delivering line was the Georgia, Florida & Alabama Railway Company. On the day the
In the recent case of Freeman & Hinsen v. Railway, 118 Mo. App. 526, we said, “The right of the carrier to receive notice as stipulated will be enforced when necessary to prevent possible imposition in the particular case, but it will not be unreasonably nor harshly applied to deprive the shipper of his lawful rights, nor will it be enforced at all when its purpose has been fully and unequivocally accomplished.” And in Richardson v. Railway, 62 Mo. App. 1, we observed that the object of such notice “is that defendant may have an opportunity of inquiring into the alleged loss so that unjust claims may be thwarted.” Applying the principles followed in these and other cases (Popham v. Barnard, 77 Mo. App. 619; Ward v. Railway, 158 Mo. 226; Rice v. Railway, 63 Mo. 314), it would be harsh and unreasonable to enforce the letter of the stipulation under consideration since its purpose has been clearly accomplished. We are not saying that where the fact that the carrier received
Defendant objects to the admission in evidence of the impression copies of two' letters plaintiffs claimed to have written and mailed defendant, the contents of which, in our opinion, have a material bearing on issues involved in the1 case. Plaintiff served timely notice on defendant to produce the original letters, but defendant denied having them in its possession and its officer, in whose custody they should have been, did not remember that such letters ever had been received. In order to lay the foundation for the introduction of the secondary evidence offered, it devolved on plaintiffs to show that the letters had been delivered to defendant. This, they attempted to do by the testimony of one of the plaintiffs, who testified that he dictated the letters to his stenographer, and, after they were written, read and signed them. He then returned them to the stenographer, whose duty it was to prepare them for mailing and then deposit them in a mail chute connected with a post box maintained in the building. Witness could not say from personal knowledge whether or not the stenographer had prepared these particular letters for mailing or deposited them in the chute, but stated that it was her custom to follow this course with all of the letters dictated by
Defendant claims that the court committed error in the instruction relating to the measure of damages and the point would be well taken had the error not been induced by defendant’s own interpretation of a stipulation in the shipping contract. However, in view of the probability of a retrial of the case, we will construe the provision and announce the rule that should be applied. The contract states that, “In the event of the loss of property under the provisions of this agreement, the value or cost of the same at the point of shipment shall govern-the settlement.” This clearly refers to property lost in transit and not to property damaged during the transportation by the fault of the carriers and consequently can have no effect on the general rule of law controlling cases similar to the one before us. The measure of damages is the difference between the market value of the chops at Babcock in the condition in which they would have been received had they been delivered
We find no other error in the case but, for that noted, the judgment is reversed and the cause remanded.