95 Kan. 681 | Kan. | 1915
The opinion of the court was delivered by
An action for the loss of a horse was brought by J. M. Piper against The Missouri, Kansas & Texas Railway Company before a justice of the peace of Bourbon county on July 22, 1911, but by an amendment The Donohoo Horse and Mule Company was substituted as plaintiff. The railway company had undertaken to carry the horse in question with other
The contract under which the shipment was made recited that the company had two rates on live stock, and that the horses of plaintiff were shipped under a rate that was less than a certain published rate, in consideration of which it was agreed that in case of loss or injury during transportation the liability of the carrier should not exceed $100 for each horse. It appearing from the contract, which was signed by the parties and introduced in evidence, that there were two rates and that the limitations on liability were based on the consideration that the lower rate was given to the plaintiff, further proof on that point was not required. The shipment being from Kansas to Tennessee it was interstate in character, and therefore governed by the federal law. Under that law the agreed value of the horse and the liability in case of its loss was a factor in fixing the rate of transportation, and being transported upon a rate based upon a stipulated value, which was less than the real value, the company-can not, by a subsequent agreement or arrangement with the shipper, pay the latter a greater amount than that which was stipulated and became the basis of the rate. To do so would be giving him an advantage over other shippers and would constitute an unlawful discrimination. (Nursery Co. v. Nursery Co., 89 Kan. 522, 132 Pac. 149; Metz v. Railway Co., 90 Kan. 460,
It appears that the action was not brought within the time fixed by the contract, but this stipulation, like
The recovery of the plaintiff, however, is excessive in amount, and it is entitled to no more than the amount of liability fixed by the shipping contract, which is $100. The judgment must, therefore, be modified, and to that end the cause will be remanded with directions to reduce the amount of recovery and enter judgment in favor of the plaintiff for $100. So modified, the judgment is affirmed.