Buffington & Lee v. Wabash Railroad, 118 Mo. App. 476

118 Mo. App. 476 | Mo. Ct. App. | 1906

ELLISON, J. —

The present action was brought by plaintiff to recover damages for an alleged negligent delay in the shipment of forty-seven head of cattle. The judgment in the trial court was for the plaintiffs.

The cattle were shipped under the terms of a written contract and their destination was the National Stock Yards, East St. Louis, Illinois, a point to which defendant’s road did not extend. The delay was occasioned by the connecting line and therefore defendant contends it is not liable. The contract is: “The Wabash Railroad Company, party of the first part and Perry Lee (party of second part), Witnesseth: That the party of the first part and connecting lines, will in consideration of the agreement herein contained forward for the party of the second part one man and the following freight, to-wit; forty-seven cattle, each of said cattle weighing 1200 lbs., from Keytesville, Missouri, the responsiblity of each carrier to extend hereunder only to its own line. At the rate of 13 l-4c per cwt. which is a reduced rate expressly agreed upon between the parties hereto-, and in consideration of which rate the party of the second part stipulates and agrees as follows,” etc.

It will be observed that no destination of shipment is named in the above agreement. But at the head of the paper, preceding the agreement, is the following: “To the Wabash Railroad. Company: The undersigned offers for shipment over your railroad, and connecting-lines, forty-seven head of cattle from Keytesville to Nat’l St’k Yds. each of the estimated weight of 1200 lbs. and valued at $50 per head and subject to the rules and regulations of the company and of the schedule of valuations and weights printed on the back hereof; such valuations being named by me for the purpose of securing a reduced rate of freight; in consideration thereof, in case of loss or injury to said live stock the liability of the carrier or carriers shall not exceed the above amount per head.” And on the back of the contract is the following indorsement: “From Keytesville, Mo., to Nat’l St’k Yds. Shipper Perry Lee, Keytesville. Consignee, Sanders Com. Co. Nat’l Stk. Yds.”

We regard the contract thus gathered from the whole paper, as naming the National Stock Yards to be the point of destination. So regarding it, the question is, is the defendant as initial carrier, liable for the negligence of the connecting carrier? The rule, as has been stated by this court, is that, if the receiving carrier’s contract is to transport the freight to point of destination, it cannot limit its liability for the negligence of a connecting carrier. And the receipt of freight and issuing a bill of lading therefor to- a destination beyond its own line is prima facie an agreement to carry to such point, even though there is no express stipulation to transport to such po-int, and that to prevent such operation of the contract it becomes necessary for the initial carrier to stipulate that it is only to carry to end of its own line. [Bank v. Railroad, 72 Mo. App. 82; Marshall v. Railroad, 74 Mo. App. 81; Popham v. Barnard, 77 Mo. App. 628, 629.] This view of the initial carrier’s contract, as influenced by the statute, has been approved by the Supreme Court in the cases of Marshall v. Railroad, 176 Mo. 480, and Western Sash and Door Co. v. Railroad, 177 Mo. 641. And it follows that the defendant is liable for the negligence of the connecting carrier, since there is nothing in the contract which can be construed into an agreement that defendant would only carry the cattle to the terminus of its own line. It does undertake to relieve defendant of “responsibility only to its own line;” and that it cannot do, under the statute, except by contracting that it will not carry beyond its own line.

Defendant complains that the verdict of $200 is excessive and it seeks to make such excess appear in the following way. In a part of the foregoing quotation from the contract of shipment is found a valuation of $50 per head of cattle, and in case of loss or injury, the liability of the carrier is limited to a sum not exceeding that amount per head. At $50 per head the forty-seven cattle, if all lost, would amount to $2,350. They were sold for $2,262.90, being only $87.10 less than the total contract valuation. Prom this defendant says the amount of damage under the contract was only the latter sum. We do not consider such view of the contract as just or sound. If it Avere, then if one-half of plaintiff’s cattle had been lost through negligence and yet he had received $100 per head for the remaining half, he would not have been damaged. The meaning of the contract is that for loss or injury to any one or more of the cattle, the damages shall not exceed $50 for each one. It was of no consequence to defendant what plaintiff got for his cattle. Its only concern was as to the amount in dollars each one Avas injured, and to see that it was not made to pay more than $50 for each one.

There is no just ground of complaint as to the instructions given and refused. The point made as to some of plaintiff’s being a departure from the allegations of the petition, we think not borne out by the record. The petition complains of delay for an unreasonable time, or of failure to deliver within a reasonable time, and the instructions submit that hypothesis. It is true that it is alleged that plaintiff missed a certain market time in consequence of this delay. But that was merely an allegation of the consequence of the negligence whereby the' damages were made to appear. We are satisfied that, fairly and properly considered, the petition and instructions are not subject to criticism.

Other points of objection have been examined, but we believe them not of sufficient moment to justify us in remanding the cause for another trial. Believing that no error was committed substantially affecting the merits of action, we must affirm the judgment.

All concur.