177 Mo. App. 18 | Mo. Ct. App. | 1914
On July 4, 1911, defendant, a common carrier, received seventy-eight fat hogs from plaintiff for transportation from Blackwater, Mo., to the National Stockyards at East St. Louis, 111. The shipment left Blackwater in the afternoon and had the
The answer pleaded compliance by defendant with the Interstate Commerce Act and amendments thereto and interposed a number of defenses based on the provisions of a written contract for the transportation.
The reply put the question of the validity of these provisions in issue and also pleaded a waiver. Plaintiff introduced evidence tending to prove the pleaded acts of negligence and their causal relation to the damage sustained by him. Defendant’s evidence shows compliance with the requirements of the Interstate Commerce laws and that at the time of the shipment its tariffs were duly filed and posted. Further it was shown by defendant that before the shipment left Blackwater the parties entered into a written contract which recited: ‘ ‘ That for the considerations and mutual covenants and conditions herein contained, the said first party will' transport for the said second party the live stock described below, and the parties in charge thereof, as hereinafter provided, viz.: One
Then follow certain stipulations from which we quote: “Third: That the second party shall assume all risk and expense of feeding, watering, bedding and otherwise earing for the live stock covered by this contract while in cars, yards, pens, or elsewhere, and shall load and unload the same at his own expense and risk.” . . . “Fifth: That as a condition precedent to the recovery of any damages, for any loss or injury to live stock covered by this contract for any cause, including delays, the second party will give notice in writing of the claim therefor to some general officer or to the nearest station agent of the first party, or to the agent at destination or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of the stock at destination, to the end that such claim may be fully and fairly investigated ; and that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims, and to any suit or action brought thereon.” . . . “Eleventh: That no suit or action against the first party for loss, damage or delay to or of the live stock shipped under this contract shall be
Further the contract provided that the rate stated in the opening paragraph applies only to shipments “made at the owner’s risk with limitation of liability on the part of the railroad company as common carrier” and fixes°a higher rate “on shipments made without limitation of carrier’s liability at common lawi.”
It appears, that plaintiff did not notify defendant of his claim for damages until July 7, 1911, two days after the arrival of the' hogs at the stockyards and further that this suit was; not commenced until April 20, 1912. To meet the defenses urged by defendant that the notice was not given in the time stipulated in the third paragraph of the contract and that the suit was brought after the expiration of the time allotted in the eleventh paragraph, plaintiff introduced in evidence a letter dated April 2, 1912, sent by defendant to the agent of plaintiff, as follows:
“With reference to above claim filed by you on July 7th in favor of J. N. Sims, Blackwater, Mo., amounting to $87.23 on car hogs shipped from that point July I, 1911, concerning which you have written
“Our position in connection with this claim has not been made known to you, because you will remember that we lost original papers and you very kindly furnished us with a duplicate set and only recently has our investigation been completed. *
“The unloading certificate you sent us shows hogs were unloaded at 11:40 a. m. on July 5th, and sold on that day’s market. "While the unloading at National Stockyards was somewhat late, we have developed that the car was at National Stockyards ready to be unloaded around 9 a. m., but on account of a congestion ■ at your point, the unloading was not commenced until after 11 a. m. Doubtless you will recall that July 5th in point of receipts was a record breaker at National Stockyards, and the heavy receipts brought about this confusion and necessarily quite a number of cars were delayed and had to wait their turn at the landing. Added to this July 5th was one of the hottest days last summer, and nearly every car that arrived had from two to more dead hogs, the death of which was brought about by the excessive heat. There was absolutely no delay in the transportation between Blackwater and St. Louis and the delay with which hogs met at National Stockyards is, of course, chargeable to above condition.
“I wish to say that we have paid no claim for hogs or cattle delayed after they left our possession, as it was something over which we had no control, neither have we entertained claims for death of hogs in shipments made July 4th.
“In view of our good handling of shipment in question, do not see how it will be possible for us to admit of responsibility and under the circumstances, nothing remains for me to do but ask for cancellation of bill versus this company.
The court refused defendant’s request for a peremptory instruction and submitted to the jury in appropriate instructions the issues of fact tendered by the petition. On the issue of waiver the court, at the request of plaintiff, instructed the jury that if they “shall believe from the evidence that the plaintiff, on the 7th day of July, 1911, gave notice in writing to the defendant of his claim for damage and loss for delay in shipment of said hogs, that is, the death of eight and shrinkage of others, and that defendant’s agents received said notice without objection and investigated the same and held the same under advisement until April 2, 1912, and then rejected said claim on •other grounds than that notice was not timely given, the said conduct of defendant was a waiver of the sufficiency of said notice.
“And you are further instructed that if the defendant accepted and received said notice and lost the papers accompanying said claim or notice and called ■on the plaintiff’s agent for a duplicate of said notice and claim and that said agent furnished same to defendant, and that defendant held the same until said 2nd day of April, 1912, and that the plaintiff did not sue within six months after said loss, if any, occurred, in the belief that defendant would adjust and settle said claim, and that plaintiff did bring this suit within eighteen days after said claim was rejected, then defendant waived the terms of the contract requiring suit to be brought within six months after said damages accrued. ’ ’
Thus instructed the jury returned a verdict for plaintiff and after its motion for a new trial was overruled, defendant appealed.
An objection to the competency of certain evidence introduced by plaintiff is urged in the brief of
We agree with defendant that this was an interstate shipment, falling within the purview of the Interstate Commerce Act and the amendments thereto and that the written contract entered into by the parties was supported by a valuable consideration and must be held binding upon plaintiff. It would be binding under the decisions of this State rendered before the recent decisions of the Supreme Court of the United States construing what is called the Carmack Amendment to the Interstate Commerce Act since our courts have recognized and applied the rule that a reduced rate would afford a sufficient consideration for stipulations in a shipping contract restrictive of the carrier’s liability at common law. But the laws, of this State relating to interstate shipments were superseded by the Interstate Commerce Act as finally amended and since that legislation now covers- the entire field of interstate commerce, we must look to it for guidance and to the decisions of the Federal courts construing it.
Referring to the effect of the Carmack Amendment, the Supreme Court of the United States say in Adams Express Co. v. Croninger, 226 U. S. l. c. 505: “That the legislation supersedes all the regulations and policies of a particular State upon the same subject results from its- general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all State regulations- with reference to
To the same effect are the later cases of Railway v. Carl, 227 U. S. 639, and M. K. & T. Ry. Co. v. Harriman, 227 U. S. 657. See also American Silver Mfg. Co. v. Railroad, 156 S. W. 830; 174 Mo. App. 184; Joseph v. Railroad, 157 S. W. 837, 175 Mo. App. 18; McElwain v. Railway, 158 S. W. 465, 176 Mo. App. 379.
That the shipping contract in the present case was valid and binding on both shipper and carrier under the Federal Law is a proposition about which there can be no doubt in view of the decisions of the Supreme Court to which we have just referred. In Express Company v. Croninger, the rule so often applied in this State that forbids a common carrier from exempting himself by contract from liability for his own negligence or that of his servants1 is’ reaffirmed, but the gist of the decision is that a carrier may contract with the shipper for immunity from all other liability than that created by his tortious acts, or those of his •servants.
The stipulation in the fifth paragraph of the contract providing for the giving of speedy written notice of the loss was valid and enforceable (M. K. & T. Ry. Co. v. Harriman, supra; McKinstrey v. Railway, 153 Mo. App. l. c. 552; Freeman v. Railway, 118 Mo. App. 526) and of agreements similar to that contained in the eleventh paragraph, the Supreme Court say in the •decision last cited (227 U. S. l. c. 672): “The policy of Statutes of Limitation is to encourage promptness in the bringing of actions, that the parties shall not •suffer by loss> of evidence from death or disappearance
The failure of plaintiff to perform these stipulations in the time and manner stated would have precluded him from maintaining this action but for the conduct of defendant in accepting the belated notice as one given in time and in holding the claim for investigation until after the expiration of the agreed time for plaintiff to sue upon it. By such acts defendant waived the benefit of these stipulations. [Jones v. Railroad, 117 Mo. App. l. c. 527.]
It may be conceded that the broad purpose of the Interstate Commerce Act is to assure equality and to prevent all manner of discrimination and that carrier and shipper may not in any manner vary fixed rates to
The demurrer to the evidence was properly overruled. In what we have said we have answered points made by defendant against the instructions. The judgment is affirmed.