BAILEY, J.
Plaintiffs’ petition is in four counts, seeking damages for failure to furnish stock cars within a reasonable time after written notice and for delay in shipment of live stock. Counts one and two relate to an interstate shipment; counts three and four are on an intra-state shipment. The answer, after a general denial, pleads, among other things, the shopmen’s strike of 1922, as an excuse and reason for the delays mentioned in
plaintiffs’ petition. Judgment was for plaintiffs on all four counts, hence this appeal.
The first count of plaintiffs’ petition charges that on or about the 28th day of October, 1922, plaintiffs notified defendant’s agent at Phillipsburg, Missouri, that they would want one stock car on the 4th day of November, 1922, in which to ship thirty-six head of cattle from said station to East St. Louis, Illinois, which was alleged to be reasonable notice; that the car was not furnished until November 26,1922; that plaintiffs were damaged in the sum of $455.40' for feeding and care of cattle while waiting for the car, and decline in market price.
The second count relates to the same shipment and charges that plaintiffs delivered the thirty-six head of cattle to defendant on November 26, 1922, at Phillips-burg, for shipment to the market in East St. Louis; that it was defendant’s duty to transport said stock to market in a reasonable time; that ten or twelve hours was a reasonable time in which to have transported said stock; that defendant did not have said stock ready to be delivered at said market until thirty-two hours after receiving same at Phillipsburg; that on the 27th day of November, 1922, when said stock should have reached the market and been sold, the market value was fifty cents per hundred higher than on the 28th when the stock was sold; that one cow was crippled; that the cattle shrunk in weight and plaintiffs were damaged in the sum of $253.62.
The third count of plaintiffs’ petition charges that on or about October 21, 1922, plaintiffs notified defendant’s agent at Phillipsburg, Missouri, that they would want one car on the 25th day of October, 1922, in which to ship forty head of cattle and five calves from Phillips-burg, Missouri, to St. Louis, Missouri; that the notice was reasonable; that the defendant failed to furnish the car until November 20', 1922; that plaintiffs were damaged in the sum of $445.95.
The fourth count relates to the' same shipment referred to in the third count of plaintiffs’ petition and charges delay in shipment, to approximately the same extent as in count two; the date of shipment was November 20, 1922; the damage claim is based on shrinkage in. weight of live stock caused by the alleged delay in transporting.
Defendant’s first assignment of error relates to the action of the trial court in striking out certain parts of defendant’s answer. As this answer is quite lengthy, we shall give only a brief synopsis of its contents. The answer, after pleading a general denial, sets up special defenses first as to counts one and three, then as to counts two and four. As to counts one and three it is alleged, that if it be true plaintiffs ordered the cars at the times set out in the petition and that the cars were not delivered within a reasonable time, that such failure to deliver was no fault of defendant but was occasioned by conditions over which it had no control, namely, the “Shopmen’s Strike” of July 1, 1922, called in protest to a decision of the United States Labor Board reducing their wages; that all “skilled labor” left the services of defendant and refused to work and by reason thereof, the cars could not be furnished; that the Interstate Commerce Commission issued preferential orders for fuel and food stuff; that under the safety appliance acts of Congress it was unlawful for the railroad company engaged in interstate commerce, to haul any defective cars or locomotives, and that on account of defendant’s inability to secure skilled labor it could not keep its cars and locomotives in the condition required by the Act of Congress; that the normal movement of trains was obstructed by acts of violence of strikers and sympathizers; that plaintiff and the general public knew defendant was unable to procure sufficient help and that delays were likely to occur, and knew the strike was not a disagreement between defendant and its employees, but over the decision of the wage board and with such
knowledge ordered the cars and had their stock ready for shipment.
We now come to the parts of defendant’s answer stricken out by the trial court. Defendant charged that in recognition of a conspiracy to -obstruct the movement of the United States mails, the Government of the United States applied for a restraining order against the shop-men’s strike, and plaintiffs, with knowledge thereof, loaded their stock. We do not believe this allegation material ; knowledge of the fact that injunction proceedings had been instituted would more likely cause plaintiffs to believe the effect of the strike had been averted than otherwise.
It is next alleged the stock was shipped under a written contract exempting defendant from liability for delay on account of strikes. This shipper’s contract had no relation to counts one and three which were for delay in furnishing cars. It -was entered into after the alleged delays and could apply only to counts two and four which were for delay in transporting the stock. [Baker v. Railroad, 145 Mo. App. l. c. 197, 129 S. W. 436.]
There is a further allegation stricken from defendant’s special answer to counts one and three relative to failure of plaintiffs to give notice before removing any injured live stock from the car. There was but one cow injured. From reading the court’s instruction and the jury’s verdict on this count, it would appear that this matter was decided in defendant’s favor. In any event, the defense was not good in answer to the counts for delay in furnishing cars. We find no error in the action of the trial court in this respect.
The principal and fourteenth contention made by defendant in this case, relates to the alleged error of the trial court in peremptorily instructing the jury that the strike referred to in evidence, known as the Shopmen’s Strike, which went into
effect
July 1, 1922, constitutes no defense to the cause of action set up in any count of plaintiffs ’ petition.
The strike defense, pleaded in defendant’s answer, raises the following questions, as applied to the evidence and the four counts of plaintiffs’ petition.
1. In an action at common law on an interstate shipment, for damages caused by delay in furnishing cars within a reasonable time, after written notice by shipper as charged in count 1 of plaintiffs ’ petition, may an exist ■ ing strike of defendant’s railroad shopmen be pleaded as an excuse in the absence of notice by defendant of its inability to so furnish said cars?
2. Is the same rule applicable to an intra-state shipment in Missouri, as set out in count 3 of plaintiffs’ petition?
3. In an action at common law on an interstate shipment for damages caused by an unreasonable delay in transporting live stock, as set out in count 2 of plaintiffs ’ petition, may an existing strike of defendant’s railroad shopmen he pleaded as an excuse for such delay, the hill of lading containing a stipulation exempting defendant from liability for delay caused by strikes, stoppage of labor, etc., except in case of its negligence contributing thereto?
4. Is the same or a different rule applicable to au intra-state shipment in Missouri, as set out in count four of plaintiffs’ petition?
As to the first and third propositions above set out, the claims being based on an interstate shipment, the laws of the United States and the common-law principles adopted by our Federal Courts govern. [Morrow v. Wabash Ry. Co., 265 S. W. l. c. 855.]
As heretofore indicated this suit is based upon the common-law rights of plaintiffs and the common-law duties of defendant with respect to furnishing cars and transporting live stock. The common-law remedy is conceded to be available, notwithstanding the various statutes. [Southern Ry. Co. v. Moore, 133 G. A. 806, 67 S. E, 85, 26 L. R. A, 851 and note.]
Under the common law, common carriers are “bound to provide sufficient cars for transporting, without unreasonable delay, the usual and ordinary quantity of freight offered to them, or which might reasonably be expected.” [4 R. O. L. 672.]
The Interstate Commerce Act, which is simply declarative of the common law on that point, provides, in respect to cars, that “it shall be the duty of every carrier, subject to the provisions of this Act, to provide and furnish such transportation upon reasonable request therefor.” [41 Stat. L. 475.] This duty to furnish cars is not an absolute one. It has been held, in addition to storms, floods and other natural causes, that the carrier may be excused on account of unusual or extraordinary demand on the railroad in excess of its carrying capacity or beyond that reasonably to be anticipated. [Ocean Steamship Co. of Savannah v. Savannah Locomotive Works
&
Supply Co., 131 G. A. 831, 63 S. E. 577, 15 Ann. Cas. 1044, 20 L. R. A. 867; Ballentine v. North Mo. R. Co., 40 Mo. 491, 93 Am. 315; Howell v. Hines, 236 S. W. 887; Shoptaugh v. R. R, Co., 126 S. W. 752, 147 Mo. App. 8.]
The shopmen’s strike pleaded as an excuse for delay in furnishing cars in this case, had been in existence approximately five months at the time plaintiffs ordered the cars. The requests for cars were in writing and accepted by defendant’s agent at Phillipsburg. There was some evidence that defendant’s superintendent of transportation, Mr. Daggerell, assured plaintiffs, prior to the time of this order, that tlieir orders for stock cars would be taken care of. This was denied by Mr. Daggerell. Plaintiffs knew the strike had been in effect, but were not notified that defendant would be unable to furnish cars on that account. After requesting the cars on October 28th, for November 6, 1922, plaintiffs had their stock ready for shipment at Phillipsburg on that date, The car was not furnished, on the interstate shipment, until November 26th, and for twenty days plaintiffs were
compelled to feed and care for said cattle, awaiting the car. During that period, plaintiffs made several inquiries as to the furnishing of the cars. There is no evidence that defendant, at any time, informed plaintiffs of its inability to furnish the stock cars; the strike had been in existence for a long period of time; new men had been hired in large numbers to take the places of strikers, and live stock was being shipped to a greater extent than in the year 1921. The fact that plaintiffs knew of the existence of the strike would be no notice as to defendant’s inability to furnish cars; they had a right to assume, in the absence of timely notice, that the cars would be furnished at the time requested and were justified in bringing their stock to defendant’s station, on that date, for shipment. Under such circumstances, we are of the opinion that the strike defense, granting it to be a good excuse under other conditions, was not available to defendant as to counts one and three.
The necessity of notice to the shipper by the carrier of its inability to furnish cars on the date requested is well settled. ‘ ‘ The law implies an agreement on the part of a railroad company to furnish necessary cars on a particular day when a proper request therefor has been made, ... to excuse a carrier from liability for damages because of its failure to furnish cars as requested by a shipper, it must, if it has reason to anticipate its inability to do so, advise the shipper of that fact. [4 E. C. L. 678.] A similar rule is stated in 10 C. J. 74. To the same effect is: Eastern Ry. Co. of N. M. v. Littlefield, 237 U. S. 140, and Cronan v. Railroad, 149 Mo. App. 149, 130 S. W. 437; Ayres v. Chicago & N. W. R. Co., 71 Wis. 372, 37 N. W. 432.
A case involving this point, under almost identically the same state of facts, has been recently decided by the Kansas City Court of Appeals in Fewel v. St. Louis & S. F. Ry. Co., 267 S. W. 960. Judge Arnold very succinctly states defendant’s case, as follows: “Defendant argues with apparent sincerity and earnestness, that, by
reason of the prior strike in the shops of defendant, it was short of men, and thereby unable to keep its equipment in repair, and therefore, it is not to be held liable to respond in damages for failure to furnish cars. No cases are cited in support of this argument. It is not claimed that there was, in fact, a strike in its shops on November 4, 1922, at the time the order was placed for the cars in question, but it is urged and was pleaded in the answer that there had been a strike, and that by reason thereof, defendant was without proper labor to keep its equipment in proper repair for service. There is no testimony of record to show plaintiffs were advised of this situation and so, under the rule above stated, the jury was warranted in holding defendant liable.”
In the Fewel case, supra, the strike plea was evidently submitted to,the jury. In the case at bar, the peremptory instruction took away that defense. In view of the authorities above cited, as to counts one and three, we hold the peremptory instruction was properly given under the common-law rule, relative to furnishing' cars, as adopted both by the Federal and our State courts.
In considering the third proposition above suggested, relative to delay in transportation of stock on the interstate shipment, it must be borne in mind that the stock was shipped from Phillipsburg, Missouri, to the National Stock Yards in East St. Louis, Illinois, under a shipper’s contract; This contract, or bill of lading, provided among other things, that, “except in cases of its negligence proximately contributing thereto, no carrier or party in possession of all, or any of the live stock, shall be liable for any loss thereto, or damage thereto, or delay caused ■by . . . riots, strikes, stoppage of labor or threatened violence. ’ ’
Plaintiffs strongly urge this provision is without consideration and therefore void. The strike was in existence at that time. A railroad company should not, be required to do the impossible and if a situation had developed, without negligence on the part of defendant and which the defendant had reason to believe would]
cause delay in .transporting the live stock, it had a right to protect itself against such contingency, by contract; it could have refused to accept the shipment for failure to comply with a reasonable requirement in relation thereto, provided, of course, the then existing strike could be considered as cause for unavoidable delay. [Unionville Produce Co. v. Chicago B. & Q. R. Co., 168 Mo. App. 168, 153 S. W. 63; Russell Grain Co. v. Wabash R. Co., 114 Mo. App. l. c. 496., 89 S. W. 908.] .
It is further claimed that the so-called Carmack Amendment to the Interstate Commerce Act renders this stipulation unlawful and void. The Carmack Amendment makes the carrier liable to any person, entitled to recover on the bill of lading for-the actual loss and damage to property transported, “not withstanding any limitation of liability . . . and any such limitation, without respect to the manner or form in which it is sought to be made, is hereby declared to be unlawful and void.” [38 Stat. L., page 1197.]
In construing this statute, the U. S. Supreme Court, in the case of Adams Express Company v. Croninger, 226 U. S. 491, in a unanimous opinion, rendered after the case had twice been argued, held as follows: “What is the liability imposed upon the carrier? It is a liability to any holder of the bill of lading, which its primary carrier is required to issue, for any loss, damage or injury to such property caused by it or by any connecting carrier to whom the goods are delivered. The suggestion that absolute liability exists for every loss, damage or injury from any and every cause, would be to make such a carrier an absolute insurer and liable for unavoidable loss or damage thereto, due to uncontrollable forces. That this was the intent of Congress is not conceivable. The liability it imposed is limited ‘to any loss, injury or damage caused by it, or a succeeding carrier to whom the property may be delivered,’ and plainly implies a liability for some default in its common-law duty as a common carrier. ’ ’
The court further held that “the rule of the common law did not limit its liability to loss, and damage due to its' own negligence or that of its servants. That rule went beyond this and he was liable for any loss or damage which resulted from human agency, or any cause not the act of Rod or the public enemy, -but the rigor of this liability, might be modified through any fair, reasonable and just agreement with the shipper, which did not include exemption against the negligence of the carrier or its servants.”
Under’ the ruling in the Adams case, the carrier is not an insurer and, where the negligence of a connecting carrier is not involved, might exempt itself from liability, except for its own negligence, as at common-law. While the Interstate Commerce Act has been amended since the decision in the Adams Express Company case, by the first and second Cummins Amendments, 39 Stat. L. 441, we do not believe the effect of the decision was changed thereby.
If then, a carrier may limit its liability, under the Federal statutes, and the common law, for damages caused by unreasonable delay in transporting, except as to its own negligence, is an existing strike of defendant’s railroad shopmen to be construed as such negligence on the part of defendant, which would render void the stipulation in the bill of lading in relation thereto ? A similar, question arose in the case of Jonesboro L. C. & E. R. Co. v. Maddy, 157 Ark. 484, 248 S. W. 911, 28 A. L. R. 498. There was involved an interstate shipment of hogs. The shipment should have reached its destination in two days, but as a matter of fact, never arrived at all. The delay or failure to deliver was caused by a switchmens’ strike at the terminal. The bill of lading contained a provision by which the carrier was released from liability for delay in transporting caused by strikes. The Arkansas Supreme Court held, “the general rule 'is that the carrier is liable for the negligence of its servants during the course of their employment, and therefore, if its employees go on a strike, abandoning the per
formance of their duty and causing delay in the transportation of goods, the carrier is liable,” citing 10 C. J., art. 414, p. 293. The opinion further holds, after stating the Federal rule permitting a modification of the liability above defined, that “the carrier may, by fair and reasonable agreement restrict its liability for losses which are the proximate result of strikes on its own road, or that of its connecting carrier, where the loss is not occasioned by the negligence of the carrier in the premises, or the carrier could not by reasonable diligence have prevented the loss.” It was also held that the question of defendant’s negligence in that particular should have been left to the jury. The question of the carrier’s liability for delay, or damages incident to delay, in transportation, due to strike is annotated under the reported case in 28 A. L. R., p. 503.
The Supreme Court of the United States seems never to have directly decided whether a strike of railroad employees is an act of negligence of the railroad company against which it could not contract. In the case of Pennsylvania R. R. Co. v. Olivit, 253 U. S. 574, the suit was for delay in transporting watermelons. The bill of lading contained a provision exempting the carrier from damages for delay in transportation caused by a strike. In writing the opinion reviewing the lower court’s decision, the following is stated: “The court told the jury that defendant had proved a cause beyond its control, that is, a strike, and at the request of defendant, further instructed that if no negligence on defendant’s part was shown, defendant was not liable and that the burden of proving such negligence was upon the plaintiff. ” The Supreme Court did not comment on this phase of the case, but evidently the instructions given by the lower court were not considered erroneous.
The strike clause in shipping contracts has been held to be valid in the following cases: Warren v. Portland Terminal Co., 116 At. 411; Hance Bros. v. American Ry. Ex. Co., 190 N. Y. Sup. 530; American Express Co. v. Johnson, 100 So. 743.
In so far as interstate shipments are concerned, we are of the opinion that a strike of a railroad’s employees, which is set np as an excuse for delay under a stipulation in a shipper’s contract exempting the railroad from liability on account of delay in transporting, is not, as a matter of law, negligence attributable to railroad company and that such stipulation, if made in good faith, is a valid one. The railroad company is bound, however, to exercise diligence to overcome the effect of the strike and may be liable for negligence in that respect. [Amercan Fruit Distributors v. Hines, 203 Pac. 821; Warren et al. v. Portland Terminal Co., 116 Atl. 411.]
On this phase of the case, not to unduly prolong this opinion, it is sufficient to state that defendant produced evidence tending to prove the strike was unavoidable and that it endeavored to overcome the effect of the strike by hiring new men and attempting to induce the old employees to return and in other ways. Plaintiffs evidence contradicted this and tended to show the strike was brought about by defendant’s efforts to reduce wages and that defendant could have overcome the effect of the strike by settlement, but would not deal with the strikers, as such, on any basis. The question was one for the jury on the second count of plaintiffs’ petition and the trial court erred in giving the peremptory instruction as to the second count.
The further question remains as to the propriety of the peremptory instruction in relation to delay in transportation of stock on the intra-state shipment from Phillipsburg, to St. Louis, Missouri. The clause in the bill of lading, exempting the carrier from liability on account of strikes, which was the same as in the interstate shipment heretofore set out, would seem to he ineffectual to protect defendant against liability, by reason of section 10018, Revised Statutes 1919, Laws 1911, p. 153. [Cravens v. Hines, 218 S. W. 914.] But under section 10449, Revised Statutes 1919, Laws 1913, p. 598, the carrier is liable only for damages
caused by it,
in transporting freight, and the burden of proving the delay was not
due to its negligence is placed on the defendant. This statute seems to be partly copied from the Federal law, which has been held not to make the carrier an insurer. In construing these statutes as to their effect on the common-law rights and liabilities of defendant, it is hardly conceivable, that the Legislature intended by section 10018 to make the carrier an absolute insurer. The carrier should not be required to do the impossible and where circumstances arise which prevent delivery within a reasonable time, the carrier should be enabled to limit its liability by contract, as at common law, with the burden of proving itself free of negligence, as provided in section 10449 and section 9926, Revised Statutes 1919. In the case of Morrison v. St. L. S. F. Ry. Co., 264 S. W. 449, decided by this court, the right of a carrier to stipulate against liability, is recognized. We hold, therefore, that under the provision referred to in the bill of lading, defendant had the right to show the delay was not caused by its negligence. This it attempted to do by proving the shopmen’s strike. In the case of Read v. St. Louis, K. C. & N. R. R. Co., 60 Mo. l. c. 207, it is held that: “A company will be held responsible for damages resulting from a delay to transport freight in the usual time, when it is caused by its servants, suddenly and wrongfully refusing to work. Because the employees refuse to work or perform their usual employment, it will not release the company or the carrier from the responsibility of his contract. It may be his misfortune, but third persons are not to suffer thereby. His liability is all the same whether he could get others to supply their places or not.” The Read case seems to hold to the theory that striking employees continue to be the servants of the carrier. That is not now the prevailing doctrine in the United States. The Read ease, however, has never been overruled and we are bound thereby. But that case may be distinguished from the one at bar, in that in the Read case the strike was sudden and unexpected and purely local in character, while in the case at bar it was nation wide and had been in existence nearly five months at the
time in question. It would be unreasonable to hold that men out of defendant’s employment for such a great length of time and on such a great scale, continued to be defendant’s servants. The effect of the strike was not immediate, but was bound to continue for some time. Defendant, confronted with this condition, attempted to limit its liability by contract, as at common law. This suit is at common law, but defendant, under our statute, had the burden of proving the delay was not caused by its negligence. There was evidence offered showing the strike was nation wide; that practically all of defendant’s 7000 shopmen, went out on July 1, 1922; that defendant was unable to fill their places; that by reason of the lack of skilled labor large numbers of defendant’s locomotives and cars were out of repair on November 20, 1922, the date of the shipment; that the delay was caused largely by inability to get an engine out of the roundhouse at Newburg, as the result of lack of skilled labor. There was evidence on part of plaintiffs that defendant was responsible for the strike and could have avoided its consequences. We are of the opinion the evidence submitted would justify the submission of the strike defense to the jury as cause for the delay on the intra-state shipment. This disposes of the fourth point heretofore mentioned.
Defendant also complains of the failure of the trial court to sustain defendant’s demurrer to the evidence as to each count in plaintiffs’ petition. This point is not seriously pressed by defendant’s counsel. There was substantial evidence to support plaintiffs case and the demurrers were properly overruled.
Defendant further assigns as error the giving of plaintiffs’ instructions numbered 1, 2, 3,
4,
5, 6 and 7. No. 1, relates to the alleged delay in furnishing cars on the interstate shipment. It amounts, practically, to a directed verdict and fails to require proof of defendant’s negligence. In view of the fact the whole defense and excuse for the delay, which is practically admitted, in furnishing cars, was based on the existing strike, which
defense we have held not available to defendant, absent timely notice, the giving of this instruction was not, for that reason, reversible error, notwithstanding the rule requiring plaintiffs to prove the delay was caused by defendant’s negligence.
Instruction 1, is further assailed for incorrectly stating the measure of damages and assuming issuable facts. The instruction gives the measure of damages as such sum the jury might find the cattle declined in market value between the date said cattle would have been on the market if said car had been furnished as ordered and the date said cattle should have been delivered on the market by the defendant had they been promptly delivered when they were shipped. The rule on the measure of damages for delay in furnishing stock cars is stated in the Morrison case, supra, as “the difference in the market price at the place of destination when the shipment should have arrived, and when it did arrive, plus the additional expense incurred because of the delay.” The rule as set out in this instruction was therefore erroneous; the same would apply to plaintiffs’ instructions No. 3 and 4. [Bennett v. Railroad, 151 Mo. App. 293, l. c. 298; 131 S. W. 770.]
The instruction is further subject to criticism in assuming the cattle were not promptly delivered, which was a fact to be proven under other counts in plaintiffs ’ petition. Plaintiffs’ instruction 2, fails to require plaintiffs to prove defendant guilty of negligence on the interstate shipment. The principle is well recognized that plaintiffs must assume that burden on interstate shipments and failure to require the jury to so find, is error. [Mason v. Chicago & A. R. Co., 247 S. W. 243; Howell v. Davis, 236 S. W. 889; New Orleans
&
N. E. R. Co., 247 U. S. 367; Bland v. Ry. Co., 232 S. W. 232.]
In view of the fact we have held the stipulation in the bill of lading relative to limiting defendant’s liability on the interstate shipment, gn accgupf of the strikes, is
valid, the instruction is further erroneous in ignoring the contract and making defendant an insurer
There are other errors complained of, which we believe are sufficiently disposed of by what has been stated.
The case is reversed and remanded for the errors assigned.
Cox, P. J.,
and
Bradley, J.,
concur.