101 Live Stock Co. v. Kansas City, Memphis & Birmingham Railway Co.

BROADDUS, J. The contention of the defendant is that under the evidence the court committed error in not instructing the jury to return a verdict for the defendant; and that the court committed error in the giving and refusing of certain instructions named. We believe that the court committed no error in refusing to instruct for the defendant on the evidence, as there was ample proof to show that it was through the neglect of defendant’s agents that the plaintiff’s cattle were not promptly received and shipped by the Iron Mountain road on their arrival at Memphis, which act of negligence resulted in some damage to plaintiff’s cattle. And it is not a matter of dispute that it was negligence on defendant’s part not to have had proper [687] billing accompanying’ the shipment of the cattle from Birmingham. Reynolds v. Railroad, 121 Mass. 291; Alabama Co. v. Railroad, 92 Ala. 296; Ins. Co. v. Railroad, 8 Tenn. 268. Besides, the jury might have found upon the evidence that the Iron Mountain road would have received and promptly shipped plaintiff’s cattle on their arrival at Birmingham on the information contained in the “slip waybills” bad they been tendered as a separate shipment from that of the Eogers cattle. Instructions numbered one and two are not subject to the objection made by defendant that the jury were authorized to find against defendant on a general custom between the connecting carriers and railroads generally, whether defendant had notice of such custom or not. On the contrary, such instructions require that such notice to defendant should have been shown. Said instructions are also attacked on the ground that it makes the case depend upon the theory that defendant did not obtain the regular billing of the cattle from the Louisville & Nashville railroad, as the information obtained was all that was necessary. It may be true that the information could have enabled the Iron Mountain railroad to have received the cattle and billed them properly to the next connecting carrier, but if its agents refused to receive and ship them because the regular waybill was not tendered, which' they were authorized to do under the rule, the fault was with the defendant and there was no delivery to the connecting carrier. Ins. Co. v. Railroad, 8 Baxter (Tenn.) 268; Reynolds v. Railroad, 121 Mass. 291; Alabama Co. v. Railroad, supra. Instruction number five should not have been given because it was not authorized by the evidence. It is not shown that the plaintiff was required to consent to a delivery of his cattle by defendant, to its own road or that of any other connecting carrier. This instruction in effect tells the jury that, as the plaintiff had the right to designate the railroad at Memphis to which [688] it wished delivery to be made he was not compelled to consent to a delivery of said cattle by defendant to its own or any other connecting carrier. Instruction number four is criticised because it fixes the measure of the damages to the cattle as the difference between their condition as they should have arrived at Bliss and their condition as they did in fact so arrive. This objection is based upon the fact that the cattle were destined for White Eagle and not Bliss, but as it was shown that the two points were only a few miles apart the condition of the cattle would not have been materially different had they been unloaded at the former instead of at the latter point, the defendant could not have been prejudiced by the giving of said instruction. But the further objection is made to said instruction that it fixes the value of the cattle at their destination, whereas the contract fixes their value at the place of shipment. It is contended by plaintiff that this provision of the contract is invalid because there was no consideration for it, as the rate charged was not a reduced rate. There is nothing in this case to show that the rate for transportation was a reduced rate. In Kellerman v. Railroad, 136 Mo. 178, it was held: “A stipulation in a written contract of shipment placing a limited valuation on the property shipped in cáse of its loss by the default of the carrier when not made in consideration of special or reduced rates of shipment is not binding on the shipper.” See also Bowring v. Railroad, 77 Mo. App. 250. “In the absence of any agreement, the place for fixing the value would be ai the place of delivery.” Sturgeon v. Railroad, 65 Mo. 569; Glascock v. Railroad, 69 Mo. 589; Railroad v. Traube, 59 Mo, 355. But the contract here is not one fixing the value of the cattle, but merely a stipulation providing at what point' this value shall be fixed. In Commission Co. v. Railway Co., 80 Mo. App. 164, it was held: “A stipulation in a bill of lading that [689] the amount of loss or damage shall be computed at the time and place of shipment does not apply to loss occuring for failure to deliver the goods in a reasonable time, but rather to injury during shipment.” The validity of the contract itself was not questioned, but the controversy arose over its construction. In this case the evidence showed that the cattle were worth more in Oklahoma than at Selma, the place where they were shipped. But such might not be the case in every instance, for we know that at times property is worth more at the time and place of shipment than it is at its destination at the time of its arrival. However the validity of the contract is. upheld in Ragan v. Railroad, 51 Mo. App. 655. It was therefore error for the court to instruct the jury to compute plaintiff’s damages for cattle lost as of their value at their destination and the time of their, arrival. The court refused to instruct the jury that there could be no recovery for more than twenty-one cattle. This is assigned as error. The contract of shipment, as seen in the statement, provides as a condition precedent to plaintiff’s right to damages or any loss ox-injury to his stock during transportation, that it should give notice in writing to defendant before the stock, was removed from the point of shipment, of its damages, to the end that its claim might be fully and fairly investigated; and that a failure to comply in every respect with the terms thereof should be held a waiver of such claim. The evidence disclosed that the plaintiff gave to the defendant notice of the loss of only a part of its cattle. But it was also shown that defendant refused to investigate and denied all liability. Such being the case there existed no necessity whatever for any notice, and because plaintiff’s notice was incomplete and did not x*efer to his entire loss can make no difference, as the defendant by its refusal to investigate his claim for damages waived all right to the notice pro [690] vided by the contract. This is a familiar rule of law as applied to insurance contracts, and we think is especially applicable to the facts of this case. It is also contended by defendant that as it was the duty of plaintiff under the contract of shipment to feed and water its own stock, the defendant is not liable because said cattle were not properly fed and watered. The plaintiff concedes that such is the law, but that it is also the law that it is the duty of the carrier to furnish a proper place and facilities, and a reasonable opportunity for so doing, which is true. Lowenstein v. Railroad, 63 Mo. App. 68; Duvenick v. Railroad, 57 Mo. App. 550. And as the evidence in this case was that the defendant undertook to perform the duty of watering and feeding the stock at Memphis without the consent of plaintiff, it must be held to account for such damages as resulted from a negligent performance of such duty. As the defendant asked thirty-three instructions in all, many of which were refused, we will not undertake to review them in detail, as we think what has been said will indicate those which should as well as those which should not have been given. The plaintiff insists that defendant’s appeal should be dismissed for want of a sufficient abstract as required by the rule, and cites in support of its insistence Reno v. Fitz Jarrell, 163 Mo. 411, and other cases of like character; but that and the other cases named no longer govern. See State ex rel. v. Jackson L. Smith et al., Missouri Supreme Court, not yet reported. Under the latter the abstract is sufficient. For the reasons given the cause is reversed and remanded. All concur.