Summary
Appeal from Jackson Circuit Court. — Hon. W. B. Teas dale, Judge.
STATEMENT BY BBOADDUS, .T.
This is a suit by the 101 Live Stock Company against the Kansas City, Memphis and Birmingham Railroad Company for delay of a shipment of stock at Memphis, Tennessee, and for a failure to properly feed, water and take care of said stock on- the part of the Union Stock Yards Company at Memphis, Tennessee, into whose hands they were placed by the railroad company while waiting further orders, and to comply with the Federal statutes in regard to watering and feeding stock in transit. There were three counts in plaintiff’s second amended petition. At the trial plaintiff dismissed as to the first and third counts of the petition and stood upon the second count, which alleged: That defendant was a railroad corporation and a common carrier between Birmingham and Memphis; that on the 5th day of June, 1898, at 7 o’clock a. m., at Birmingham, defendant received 361 head of cattle to transport to Memphis, Tennessee, and there deliver to a connecting line, the St. Louis, Iron Mountain and Southern Railway Company, for further transportation to White Eagle, Oklahoma; that at said time amdfor along time prior thereto there was and had been a custom on the part of said last-named railway not to receive any cattle unless the same was accompanied by regalar waybills or expense vouchers showing weight of shipment and freight charges thereon, and advanced and back charges and expenses of such shipment up to Memphis; that this was well known to defendant; that at the time defendant received the cattle at Birmingham, defendant failed and neglected to procure, provide or make out said regular billing, failed to inform plaintiff of the rule exacted by the St. Louis, Iron Mountain & Southern Railway Company, aforesaid, as to such waybills or expense vouchers and failed to notify plaintiff that it would be unable to deliver said cattle in a reasonable time; that by reason of said negligence or carelessness defendant did not and could not deliver said cattle to the said St. Louis, Iron Mountain & Southern Railway Company, in a reasonable time, and not until twenty-four hours had elapsed; that during said delay defendant, against the protest of plaintiff, caused said cattle to be unloaded in stock pens or yards wholly unfit for the proper care of said cattle, where said cattle were not properly watered or fed or cared for; that by reason thereof plaintiff was compelled to pay $60 for feed and stock yard charges, $16 for switching charges, was compelled to make to stops en route instead of one; that 41 head of cattle sickened and died and the remaining 320 head became sick and shrunk in weight, all to plaintiff’s damage in the sum of $1,500.
•The evidence was somewhat conflicting. However, on the part of plaintiff it tended to show the following facts, viz.:
That plaintiff was engaged in the cattle business in Oklahoma Territory; that in the spring of 1898, through its agent, one Z. T. Miller, it bought and shipped from Salem, Alabama, 361 head of cattle to White Eagle, in said Territory; that they were billed from Selma over the Western railroad to Montgomery, from Montgomery to Birmingham over the Louisville & Nashville railroad, and from Birmingham to Memphis over the defendant railroad, from Memphis over the Iron Mountain railroad to Coffeyville, from Coffeyville to their destination over the Santa Fe railroad; that they were loaded at Selma in eight cars at 9 o’clock p. m., Saturday, June 4; that Miller, plaintiff’s agent, accompanied the cattle, and that they arrived at Montgomery at about midnight the same day; that the L. & N. railroad then took charge of them and delivered them at Birmingham at about 5 o’clock a. m., Sunday, June 5; and that at Montgomery nine other carloads of cattle belonging to parties by the name of Rogers were attached to the train, so that when it arrived at Birmingham the train consisted of seventeen carloads of cattle. Plaintiff’s evidence tended to show that Miller had nothing to do with the Rogers cattle, while that of defendant tended to show that he did.
At Birmingham the L. & N. railroad turned the cattle over to the defendant, and new contracts were entered into between Miller, plaintiff’s agent, and the defendant, by which the latter agreed to carry and deliver them to the Iron Mountain railroad at Memphis. The train composed of the seventeen carloads of cattle left Birmingham at about 6 o’clock a. m., June 5, and arrived over defendant’s road at Memphis at about b o’clock p. m. of the same day. Plaintiff’s cattle had been billed in the care of the Iron Mountain Railroad at Memphis, the connecting line which was to carry them from that point to Coffeyville, Kansas, under an arrang*ement with the Iron Mountain agent by Miller before leaving Selma. The evidence further tended to show that it was Miller’s intention to stop at Little Rock, Arkansas, a station on the Iron Mountain railroad, to rest, water and feed the cattle in compliance-with the act of Congress prohibiting shippers and railroads from confining cattle in cars longer than twenty-eight hours without unloading them for feed, water and rest; that the distance from Memphis to Little Rock was one hundred and fifty miles, and that the cattle could have arrived at said last named place within twenty-eight hours if defendant had promptly delivered them to the connecting line. Miller gave as his reason for wanting to unload and feed at Little Rock instead of Memphis, that the run from that place to White Eagle could have been accomplished in twenty-four hours, so that only one stop for feed, water and rest would have been necessary for the entire journey, which would save the expense of two stops on the road for said purpose, whereas it would have required more than twenty-eight hours to have made the distance from Memphis to White Eagle, requiring two stops and with added expense.
Miller had telegraphed ahead to the Iron Mountain agent at Memphis that the cattle were on the way, and when they arrived at Memphis said road was ready with an engine and train crew to start On the journey at once with them. There was evidence tending to show that when the cattle got to Memphis the cars containing them were set upon what was known as the transfer track and the defendant’s agent went to the office of the Iron Mountain railroad, informed its agent that he had no hillings covering plaintiff’s cattle and that all he did have was a memorandum called a “slip hilling” or a " hilling with weight and charges to follow. ’ ’ The Iron Mountain road refused to accept the cattle unless accompanied with a regular shipping hill containing weights, charges, destination and other necessary information for forwarding freight of the kind. Whereupon the defendant’s agent sent the cattle to the stock yards for the purpose of unloading them. To this, Miller objected, at which time, according to his testimony, defendant’s agent said to him that they would do as they pleased with them. Miller stated that he insisted on having the cattle proceed to Little Rock where he intended to feed, and offered to pay the freight and in addition $5 more per car than the regular tariff rate; hut the agent not having the hilling could not furnish the amount of charges, and refused his offer; that he then asked the agent to ascertain hy telegram the amount of the charges, hut the agent refused to do so; that he, himself, sent a telegram to defendant’s general freight agent at Kansas City, Missouri, asking him to guarantee to the Iron Mountain road that the freight charges would not exceed the amount he had paid on a prior shipment, to which he received no answer. The defendant unloaded the cattle in the stock yards. There was evidence that these yards were in had condition and unfit for the proper care of cattle, and that they were not properly fed and watered; that the cattle were fresh from grass and would not eat the cotton seed hulls given them until they were starved into doing so; that Miller demanded hay, but there was none; that he made an effort to get water for the cattle, and asked for the key to the water box, and was told that it was lost; that as a result of the condition of the stock yards and treatment of the cattle while there, the plaintiff lost six of them; and that the remainder became weak and feverish and sick, and began to get down in the cars.
' The delayed waybills arrived at Memphis at 6 o’clock p. m., when the cattle were reloaded. They reached Coffeyville at about 9 o’clock p. m., June 7, where a stop was made, the twenty-eight hour limit having expired, and they were rested and fed.
At Coffeyville the billing was changed from White Eagle to Bliss, a place claimed to be more convenient for unloading- They arrived at Bliss at about 9 o ’clock p. m., where, when they were unloaded from the cars, it is claimed that they stampeded and got beyond the control of those in charge of them and rushed to a pond, where many of them drank.too much water and were foundered. There was evidence going to show that within thirty-six hours after they were unloaded sixteen of them had died, and that within ten days forty-one had died; and that the others did not recover their health before the expiration of two months.
There was evidence tending to show the amount of damages sustained. A letter from Miller to Mr. Riddle, defendant’s general freight agent at Kansas City, was in evidence, in which he stated plaintiff’s damage in the total was $479.50; but this statement only referred to five dead cattle. His explanation was that his only purpose in writing said letter was to give defendant’s .agent an opportunity to visit the cattle ranch to see the cattle and investigate his claim. Said Riddle acknowledged receipt of Miller’s letter notifying him of the loss of and damage to the plaintiff’s cattle, but he declined to investigate the matter and denied all liability therefor. There was evidénce showing that the waybills in question were in the office of the Louisville & Nashville railroad at Birmingham at the time plaintiff’s cattle were shipped over defendant’s railroad, but that defendant’s agent negligently failed to obtain them and forward them with the cattle. The agents of the defendant railroad were forbidden the use of memorandum waybills, such as defendant had when plaintiff ’s cattle reached Memphis. And it was a rule of the Santa Fe Railroad not to receive shipments on memoranda of the kind, of all which defendant had notice;
The contract of shipment in part reads as follows:
“Live Stock Contract. Executed at Bghm., Ala. Station, June 6, 1898.
“This agreement, made between the Kansas City, Memphis & Birmingham Railroad Company, of the first part, and Zack Miller of the .second part.
“'Witnesseth, that whereas the Kansas City, Memphis & Birmingham Railroad Company, is a common carrier, only at tariff rates and subject to the above rules and regulations, all of which are hereby made a part of this contract, by mutual' agreement between the parties hereto. Now, therefore, for the consideration and mutual covenants and conditions herein contained, the said first party will transport for the said second party the live stock described below, which it has received for shipment, and parties in charge thereof as hereinafter provided, viz.:
“........cars, said to contain .......head of cattle consigned as stated in margin, from Birmingham, Ala., station, to Memphis, Tenn., station, and at that place delivered to' ........or connecting line, at rate named in margin, the .same being a special live stock rate made in considation of the provisions contained in this contract, for and in consideration of which special rate the said second party hereby covenants and agrees as follows: “This company in “behalf of and. as agent for connecting line or lines, “but not as principal, guarantees through rates as herein set forth.
, And if any said stock shall sustain injury or damage while in transit, the presumption shall be that the same resulted from overloading, or from the neglect or inattention of the party of the second part, or his or their employees accompanying said stock, for which the party of the first part shall in no respect be liable.
“Third. That at his own risk and expense he is to take care of, feed, water, and' attend to said stock, while the same may be in the stock yards of the said first party, or elsewhere, awaiting shipment, and while the same is being loaded, transported, unloaded and reloaded, and to load and unload and reload the same at feeding and transfer points, and wherever the same may be unloaded and reloaded for any purpose whatever, and hereby covenants and agrees to hold said first party harmless on account of any or all losses of or damage to his said stock while being so in his charge, and so cared for and attended to by him or his agent or employees as aforesaid. And in case the first partv should for any reason undertake to water and feed said stock, it shall not be liable for insufficient supplies or ■ imperfect discharge of such undertaking.
‘ ‘ Sixth. That for the consideration aforesaid, said second party further agrees that as a condition precedent to his right to any damages or any loss or injury to his said stock during the transportation thereof or previous to loading thereof for shipment, he will give notice in writing of his claim therefor, stating the grounds thereof, to some general officer of said first party, or to its nearest station agent, or to the agent at the delivering station on the railroad which carries the said stock to destination, or to the nearest station agent or general officer of such delivering road, before said stock is removed from the point of shipment, or from the place of destination, and before such stock is mingled with other stock, and within five days after the delivery of such stock at its point of destination, to the end’ that such claims may be fully and fairly investigated and will afford a full and fair opportunity for tbe investigation thereof; and a failure to comply in every respect with the terms thereof shall be held to be a waiver by said second party of any such claim and shall be a complete bar to any recovery therefor. No one except a general officer of said first party has authority to waive such notice, and he only in writing.
“Eighth. The said second party further agrees for the consideration aforesaid, that in case of total loss of his said stock from, any cause for which the said first party shall be liable to pay for the same, the actual cash value at the time and place of shipment shall be taken as full compensation therefor. ’ ’
'Defendant olfered evidence to the effect that the Louisville & Nashville railroad set the ears containing the cattle on its track at Birmingham, but that its agent did not deliver any billing, expense account, or anything else to defendant at the time; that Miller was anxious for the cattle to go forward as soon as possible, and that in order to accommodate him defendant made up a special or extra freight train for the purpose, and that if it had not made up a special train, as stated, the cattle would not have left Birmingham until 11:45 p. m., and would not have reached Memphis until 2:30 p. m. the next day, which was only a few hours before the time they afterwards in fact did leave Memphis. Defendant claims that on account of the failure of the L. & N. railroad to deliver expense bills to defendant at Birmingham, and on account of the hurry to have the stock reach their destination as soon as possible, it forwarded the cattle to Memphis without the information in the possession of the said Louisville & Nashville Railroad Company. It was shown that the latter company sent to defendant’s agent at Birmingham the regular waybills for plaintiff’s cattle at about 10 o’clock Sunday, June 5, about three hours after they had started for Memphis, and at the same time notified defendant that the bills for the Rogers cattle had not been received, which were not delivered until the next day. Upon receipt of the waybills for plaintiff’s cattle, defendant’s agent at Birmingham telegraphed to its agent at Memphis of such receipt and also other information, which the defendant claims was sufficient to have authorized the agent of the Iron Mountain railroad at Memphis to have received plaintiff’s cattle and to have forwarded them at once.
There was evidence going to show that the Iron Mountain railroad’s agent at Memphis would have received plaintiff’s cattle when they arrived and forwarded them upon the information in the slip waybills mentioned, had defendant’s agent tendered them separately from the cars containing the Rogers cattle, but it seems he did not do this as he wanted to get rid of them all at the same time. And it is claimed that it was through Miller’s influence that plaintiff’s cattle were' not so received and forwarded at once because he wanted both shipments kept together for the purpose of getting the Rogers cattle upon his ranch so that he would have the opportunity of grazing them; but there is no evidence that he influenced the Iron Mountain agent in the matter to any extent.
There was evidence to the effect that the water that the cattle had drank when unloaded at Bliss was so impure as to cause their death. There was also evidence that the cattle were worth more in Oklahoma than at Selma, the point of shipment.
The finding and judgment were for the plaintiff in the sum of $856, from all which defendant appealed.
(1) Plaintiff was not entitled to recover, and, therefore, defendant’s demurrer should Nave been sustained or defendant’s first peremptory instruction should have been given. (2) According to the terms of the contract for the carriage of the stock by defendant, plaintiff was to be responsible for watering and feeding the same, and for loading and unloading for any purpose whatever. (3) It was error for the court to instruct that defendant would be liable for a general custom existing between the connecting carrier and other railroads generally. (4) The second instruction given above is wrong as well as the first, because it makes the case depend upon the theory that defendant did not obtain the regular billing from the Louisville & Nashville railroad at Birmingham before the cattle left Birmingham. This is entirely a misconception of the purpose and nature of a regular waybill as shown by the evidence. (5) The court committed error in giving instruction No. 5 for plaintiff. (6) The court erred in giving instruction No. 4 for plaintiff on the measure of damages. (7) It was error for .the court to refuse to instruct the jury that there could be no recovery for the death of more than twenty-one head of cattle.
(1) Appellant has failed to furnish a sufficient-abstract of the record and its appeal should be dis: missed. Reno v. Fitz Jarrell, 163 Mo. 411. (2) Appellant claims that it is not liable because, when the cattle arrived at Memphis it had in its possession a telegram, giving all the necessary information in regard to the cattle. This question was peculiarly for the jury. (3) Appellant next claims that Miller caused the delay at Memphis by objecting to his cattle going out unless the Rogers cattle were taken out also. The evidence, however, is all the other way. (4) Appellant next seeks to cast the burden of feeding and watering the cattle at Memphis on plaintiff’s agent, Miller, and relies upon one of the numerous fine-print conditions of the contract. To this contention we made several answers. Dunn v. Railroad, 68 Mo. 268; 5 Am. and Eng. Sncy. Law (2 Ed.), 463, note; Lowenstein v. Railroad, 63 Mo. App. 68; Duvenick v. Railroad, 57 Mo. App. 550; Kellerman v. Railroad, 136 Mo. 177; Paddock v. Railroad, 60 Mo. App. 328. (5) But even taking appellant’s view, the instruction at most required plaintiff to prove more than was necessary and was an unnecessary burden on plaintiff. “An instruction which is too favorable to the losing party can. not be made the basis of a reversal.”- Summers v. Ins. Co., 90 Mo. App. 691. (6) Our instruction No. 1 is an accurate statement of the law. Reynolds v. Railroad, 121 Mass. 291; Mt. Vernon Co. v. Railroad, 92 Ala. 296; Jndson v. Railroad, 4 Allen (Mass.) 520; Insurance Co. v. Railroad, 8 Baxter (Tenn.) 268. (7) Complaint is made of our instruction No. 5. This instruction is an accurate statément of the law. Perry Co. v. Railroad, 128 Mo. 224. (8) Plaintiff’s No. 4, on the measure of damages, is a correct statement of the law, as settled by repeated decisions in this State. Sturgeon v. Railroad, 65 Mo. 569; Glascock v. Railroad, 69 Mo. 589; Armstrong v. Railroad, 17 Mo. App. 403; Davis v. Railroad, 13 Mo. App. 449; Railroad v. Traube, 59 Mo. 355.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
