68 Mo. App. 255 | Mo. Ct. App. | 1894
The plaintiffs’ petition alleged inter alia that ‘ defendant corporation, a common carrier, received from plaintiffs onboard of its cars a thoroughbred Shorthorn bull of the value of $250, which defendant agreed, in consideration of the regular tariff rate per car to be paid, to transport from Maryville to St. Joseph; that defendant never carried the bull to the place of destination, nor was said bull ever delivered'to plaintiffs, but had ' been wholly lost to plaintiffs through the negligence of defendant.
Defendant answered denying that it had neglected to perform its duty as a common carrier in the transportation of the bull, and alleged that while transporting said bull with due care said bull died in its car while in transit, and for that reason was not delivered at the place of destination. The answer further alleged that the bull was shipped under a special contract whereby it was expressly agreed that the value of the bull should not exceed the value of $50, and that in case of loss, whether resulting from accident or negligence of defendant, the defendant did not assume a liability to exceed the valuation of $50, etc.
In the replication plaintiffs admitted that their agent signed a contract for shipment prepared by the agent of defendant, but plaintiffs state that such contract was prepared without any suggestion, statement or word from plaintiffs or their agents as to the value of said bull. That defendant did not inquire as to value nor did plaintiffs fix it. That no agreement was made as to the rate based upon reduction. That the rate of freight was not fixed, but same was to be settled at destination.
Among the provisions contained in said freight contract and pleaded in the answer were these: That for and in consideration of tariff dollars per car, the said railroad company agrees to transport one car from Maryville to Kansas City, to be loaded with one bull, and in consideration thereof, the said first party agrees to deliver said property for shipment upon the above terms, it being hereby expressly agreed that the value ■of said live stock does not exceed the following valúa
At the trial the plaintiffs were permitted to prove that their agent who shipped the bull objected to the servants of the defendant closing and sealing the car doors on account of the heat. That the day the bull
The cause was submitted to the court without instructions and without the intervention of a jury. The judgment was for $225.
X. The defendant filed a motion for a new trial on the grounds, first, that the court admitted incompetent evidence in violation of the agreed statement of facts; second, that the finding should have been for defendant, and, third, that the damages should not have exceeded $50. This motion having been overruled the defendant took an appeal here.
Now the bill of lading under the pleadings and stipulation was admissible in evidence, but as to what legal effect was to be given to any one or all of its provisions was for the court to determine. If the clause of the bill of lading under consideration can be construed into a contract by which the value of the bull was agreed upon so that in case of loss the damages became liquidated by the contract of the parties, then it must be conceded that the admission of the parol evidence as to the value of the bull was improper. But if the clause contains simply a general limitation of value, then it was inoperative in reducing the damages the plaintiff was entitled to recover as a result of defendant’s negligence, in which case the plaintiffs’ .said evidence was properly admitted.
In this case there is no contention that the plaintiffs or their agents fraudulently concealed or falsely represented the real value of the bull. The bull was delivered, it seems, without any inquiry or suggestion as to value. Nor does it appear that the defendant was in any way deceived or misled as to the value of the bull. The said clause of the bill of lading was not inserted in it in consequence of any such representation or in pursuance of any-agreement as to value. On the contrary, the bill of lading was a printed form then in use by defendant which was filled up by defendant’s
The case in this respect is very similar to McFadden v. Railroad, 92 Mo. 343, and Doan v. Railroad, 38 Mo. 408, and its decision must be controlled by the rules there announced. The language of the clause in the bill of lading does not import a special agreement between the plaintiffs and defendant that the bull received for shipment should be regarded as of the value of $50 in case of loss. But on the contrary it will be perceived that it very clearly authorizes the defendant in case of loss to prove the bull of less value than $50, and this too without violating the terms of the stipulation in relation to the facts admitted. It is thus seen that the damages which the plaintiff might be entitled to recover for the loss of the bull by the negligence of the defendant, were not under the said clause in the bill of lading liquidated or fixed therein at any amount whatever. The only effect of the clause was to operate as a limitation on the amount of the plaintiffs’ damages.
It follows from this that the admission by the trial court of the evidence as to the actual value of the bull was not improper under the bill of lading, and, therefore, not inconsistent with the agreed state of facts. And for like reasons the trial court was not restricted in assessing the plaintiffs’ damages to the sum of $50 since the damages, as we have seen, were not liquidated or fixed by the agreement of the parties in the bill of lading in the event of loss by the negligence of defendant, so the second ground of the appeal must be ruled against the defendant.
When the cause is submitted to the court without the intervention of a jury the facts found by the court are incontrovertible here. It will be presumed on appeal that the court in such case entertained correct views of the law, and if there is substantial evidence to support the judgment, as we think was the case here, it will be affirmed. Johnson v. Lullman, 88 Mo. 566; Gains v. Fender, 82 Mo. 497; Miller v. Breneke, 83 Mo. 163; Zervis v. Unnerstall, 29 Mo. App. 474; DeLaureal v. Kemper, 9 Mo. App. 77.
The judgment of the circuit court will be affirmed.
SEPARATE OPINION.
I think this judgment ought to be affirmed. The rule is that a common carrier will not be permitted by the contract of shipment to release itself from the consequences of its own negligence. As an original proposition I should say that the effect of the defendant’s contention here is to do that identical thing. It is not a total exemption, it is time, but a partial escape from the consequences of its own negligence that is attempted. However, the supreme court has said that it does not regard such partial limitation on the right of recovery as a contract exempting the carrier from the consequences of its own negligence, but seems to hold the shipper estopped from claiming more than the stipulated value of the property, on the ground that, having stated a reduced value in order to get a lower freight charge, he will not, when, a loss occurs, be allowed to claim a greater value. Judge Hough in Harvey v. Railroad, 74 Mo. 538, says: “Such
In view of the law as declared in Harvey v. Railroad, 74 Mo. 538; McFadden v. Railroad, 92 Mo. 343, and Conover v. Pacific Express Co., 40 Mo. App. 31, the judgment of the circuit court is. for the right party and ought to be affirmed.
In this state it is well understood to be unquestioned law that a common carrier may, by contract with the shipper, limit his common law liability. He may do this, perhaps, in all the states of the union. It is also fully as well and clearly determined that when no fraud or deception intervenes, a
Plaintiff therefore entered into a contract wherein he declared that his bull did not exceed the value of $50. He contracted for the tariff rate of freight for a bull of such value; and did so in the face of a provision saying that if he valued the bull higher than that sum he could do so, but must pay a higher rate of freight. He elected to ship at the lower valuation on the lower rate. It is common knowledge as well as simple justice that a carrier, whether by rail or otherwise, should receive compensation for the risk he assumes in the carriage. Ordinary business principles require that these risks be considered when rates of compensation for carriage are established. The greater the liability in case of loss, the greater is the risk and the greater should be the compensation. These matters are so clear and elementary as to scarcely require their statement.
It is likewise common knowledge drawn from experience in human conduct that more care will be bestowed upon property of great value than upon that of small value. A man is less careful of an animal valued at $50 than he would be of one worth $1,000. It is but justice that he should know the risk he assumes and the responsibility which l’ests upon him especially when the subject-matter of such risk and responsibility have been made the subject of contract. To allow the plaintiff in this case to put himself in the position that, if no loss occurs, he will only be liable to pay reasonable compensation for the transportation of a bull of the value of $50, and if a loss should occur he should be permitted to obtain damages on liability and responsibility commensurate with a bull of the value of $250, would be palpably unjust. I find the
But it has been suggested that allowing a valuation fixed by contract to obtain when the loss has occurred from negligence, is tantamount to allowing a contract to exculpate the harrier for negligence. This suggestion finds support in some adjudications, though I believe them to be founded on a misapprehension of the effect of the contract. It is the contract fairly entered into which fixes and identifies the thing carried, and it establishes its value. There is no disability upon the parties preventing them from making such a contract. The shipper certainly ought not to complain of the valuation which he himself voluntarily puts upon his property. The contract as to the property to be shipped, its value, and the rate of compensation for shipment, are matters altogether apart from negligence. The carrier by such contract is not exempted from liability for negligence, for if the property is lost through his negligence he is liable for the full amount of that loss, as he and the shipper have fixed it and no contract of exemption for negligence will bar the shipper. The shipper will hold the carrier up to the full measure of the value as agreed upon. The question was presented to the supreme court of this state in Harvey v. Railroad, 74 Mo. 538, where the court said: “We do not regard a contract limiting a right of recovery to a sum expressly agreed upon by the parties as representing the true value of the property
So in Ballou v. Earle, supra, the supreme court of Rhode Island quoted with emphatic approval the following from the case last mentioned, viz.: “There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight
Again we have the same disposition of the question in Coupland v. Railroad, supra, where the supreme court of Connecticut says: “It is a rule established by some of the best authorities, and one which we recognize as expressing the law, that when a contract is fairly made between shipper and carrier-agreeing on the valuation of the property carried, with the rate of the freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations of the property after a loss has occurred.”
The case of McFadden v. Railroad, 92 Mo. 343, is not a case in point on the question here. The question there discussed was whether there was a consideration upon which to base the contract of valuation. And it was held that there was no consideration. The court, however, at page 352, recognize the rule which I have endeavored to maintain by saying in that case, that there was nothing to show “any graduation of compensation to the valuation.”
In my opinion the trial court erred in permitting a recovery of more than the contract valuation of the animals, and that the motion for rehearing should be sustained. The majority differ as to this, and deeming
ON MOTION FOE BEHEABING-.
In some jurisdictions it is held that where there is shown an agreement to limit the liability of the carrier, it'will be presumed in the absence of proof to the contrary that it was in consideration of a reduced compensation for the carriage but in this state the rule is, a contract must be founded upon a special agreement to which the shipper assented for a lower rate of freight than would be charged but for such special contract. Rogan v. Railroad, 51 Mo. App. 665; Conover v. Express Co., 40 Mo. App. 31.
It must inevitably follow from these observations that there was no agreement to carry the plaintiff’s animal for. a price different or less than that the defendant was authorized to charge in a case where its liability was not limited and therefore no consideration to support the contract limiting defendant’s liability. According to any reasonable interpretation of the bill of lading, I think the defendant liable for the market value of the plaintiff’s animal. I adhere to the conclusion expressed in the opinion.