74 Mo. 538 | Mo. | 1881
This was an action brought by appellant in the St. Louis circuit court, upon a- special contract for-
The petition alleges that respondent is a corporation organized under the laws of Illinois, but does not allege that it is a common carrier, nor what business it was organized to carry on, nor what it was carrying on at the date of the contract. It also alleges that the horse was a “ trotting horse, worth $10,000; ” that he belonged to plaintiff, and that William T. Dickson, who executed the contract, was his agent; that the horse was placed by respondent in a defective and unsound ear, and that respondent’s agents and servants were careless and negligent in the ■management of the road and trains, and that by reason thereof the horse was injured, to plaintiff’s damage in the sum of $11,000
The answer puts in issue the ownership of the horse .and its value; admits the execution of the contract, but alleges that it was made with Dickson, who represented 'that the horse belonged to him, and that he was acting for himself, and denies the other allegations of the petition. As an affirmative defense it sets forth the following facts: that respondent had certain regular rates for transportation of horses of ordinary value, and that for horses of greater value five per cent on the owner’s valuation was charged, in addition ; that when this horse was offered for transportation, the agent of respondent asked his value, and was ffold that 'it was $100; that thereupon Dickson and the
The new matter in the answer was put in issue by the reply.
The evidence of plaintiff tended to show that he was the owner of the horse; that he was worth, at the time of shipment, $8,000 to $12,000 ; that his value consisted in his record made at races ; that he was injured during his transit to Philadelphia so as to make him worthless as a race horse, and not worth more than $60 to $100 for any purpose. The value put upon him was designated in the testimony of one of plaintiff’s witnesses as a “ fancy value.” Dickson testified that he executed the contract sued on, but that he did it as the agent of appellant; that his agency arose out of a contract between him and appellant, which is as follows:
“ This agreement, made and entered into this 17th day of November, 1874, by and between George Harvey, of Bunker Hill, state of Hlinois, party of the first part, and William T. Dickson, of St. Louis, State of Missouri, party of the second part; Witnesseth : That whereas, the said Harvey is owner of a bay trotting gelding, by the name of < Eino,’ and is desirous of placing him under the care, control and management of said Dickson for one year, to be kept and trained by him for that time, with the privilege of entering and trotting said horse in any place said Dickson may think best during that period; it is mutually agreed and understood by and between the parties as follows, to-wit: That said Dickson shall take and keep possession of said horse from this date, for the full term of one year; that during said time he shall have exclusive management, charge and control over him, with the privilege of trotting him at whatsoever place or places he may deem best or decide upon, free from any interference by
Testimony was offered by the plaintiff' for the purpose of showing negligence on the part of the servants of the defendant in the management of the train, resulting in injury to the horse. Respondent introduced testimony tending to disprove negligence on its part, and tending to show that all possible care and diligence were exercised by respondent’s agents in the transportation of the horse. It also introduced testimony tending to prove all the allegations of its answer constituting an affirmative defense.
The following instructions, asked by defendant, as to-the measure of damages, were refused by the court:
2. The jury are instructed, that if they believe that defendant’s regular rates of transpoi’tation for horses from East St. Louis to Philadelphia, Pennsylvania, were $1.64-per 100 pounds for horses of the value of $100,. and that
3. The jury are instructed that if Dickson intentionally misrepresented the value of said horse, and stated his value as being much lower than it actually was, for the purpose of procuring him to be transported at a lower rate than he would otherwise have been carried for, the plaintiff is entitled to recover only the value fixed by Dickson.
The jury rendered a verdict in favor of plaintiff for $4,165, upon which the circuit court rendered judgment, and defendant took the ease by appeal to the St. Louis court of appeals. That court reversed the judgment of the circuit court, and plaintiff brings the case here by appeal.
We are all of opinion that instructions numbered two and three, asked by the defendant, and refused by the court, should have been given, conceding the right of the plaintiff to maintain an action on the contract. This court has repeatedly held that public policy will not permit a common carrier to contract for exemption from liability on account of the negligence of itself or its servants. The
A majority of the judges are of opinion that plaintiff has no right of action upon the contract sued on; that by the terms of the contract between Dickson and the plaintiff Harvey, Dickson had the exclusive right of possession of the horse injured, and held such possession for himself and not as agent for the plaintiff’; and the contract for transportation made by Dickson with the defendant cannot be •adopted by the plaintiff and sued on by him, as a contract made by him, or for him, through Dickson as his agent. •Judge Norton entertains a different view of the effect of this contract. The judgment of the court of appeals reversing the judgment of the circuit court, will, for the reasons given, be affirmed.