113 Mo. App. 144 | Mo. Ct. App. | 1905
— Both these parties are incorporated companies. The action is for the value of two horses alleged to have been injured in transportation over the defendant’s railway by the negligence of the defendant’s servants in operating a train on which the horses were hauled. The case was here on a former appeal and some of the facts are given in the opinion then delivered. [105 Mo. App. 556.] There was a reversal of the first judgment on a technical point. Before the second trial, new issues were framed on which evidence was received and
The original answer was a general denial. After •the cause was returned by this court for another trial, an amended answer was filed containing a general denial and two special defenses based on the receipt or bill of lading issued by defendant’s agent when the horses were consigned to it for shipment. One of the defenses is that the plaintiff failed to give notice in writing of its claim to the general freight agent of the defendant, within ten days after the loss or damage to the horses was sustained. A clause in the bill of lading provided for notice. We hold that the defendant, by filing and going' to trial on an answer which set up no defense based on failure to give notice, but relied on a denial that it had injured the horses, waived the defense of lack of timely notice. The point is made too late.
Defendant’s counsel takes the position that.the re
The other special defense is that the horses were shipped at a reduced rate in consideration of an agreement that in the event of injury or damage to them the shipper would not hold the defendant liable for more than $75 for each horse. We copy the portions of the bill of lading material to this defense :
“ST. LOUIS & HANNIBAL RAILWAY COMPANY'S LIVE STOCK CONTRACT.
“Executed at Bowling Green Station, September 28, 1902.
“This agreement entered into by and between the St. Louis & Hannibal Railway Company, party of the first part, and Hawkins Bros., party of the second part, this 28th day of Sept., 1902.
“Witnesseth, that whereas, the St. Louis & Hannibal Railway Company, as a common carrier, transports live stock at less than its regular tariff rates when its liability is limited by contract as follows:
“That said party of the first part will transport for the said party of the second part two' carload horses said to contain two head, together with the party or parties in charge thereof, as hereinafter provided, from Bowling Green, M’o. station to St. Louis, Mo. station, consigned to Keyes-Marshall Bros. & Co', at Union Stock Yards Mo. subject to minimum weights applying on cars of various lengths as per tariff and rules in effect on the date of shipment, at the through rate of............ Tff............Per............Car............ from Bowling Green to St. Louis, Mo., the same being a special rate, less than the regular tariff rate applying on shipments not covered by the conditions and stipulations herein contained.
“And it is further agreed by and between the parties to this contract,, that in further consideration of the*152 special rate named herein, the said second party will not hold the said first party liable for injury or damage to said stock from any cause whatsoever beyond the actual value of the stock, and that the maximum valuation of the several kinds and species of stock under this contract shall be as follows:
“Each Horse or Pony (gelding, Mare or
Stallion) Mule or Jack............ $75.”
A list of the valuations of other animals follows.
It should be stated that the bill of lading was issued to Hawkins Bros., who were the agents of the plaintiff for the shipment of the horses, and that plaintiff is bound by the alleged agreement regarding the amount to be claimed as the value of the animals made by Hawkins Bros, if it was a legal agreement. It will be observed that the bill of lading recites that the rate charged was less than the defendant’s regular tariff rate when its common law liability was not restricted. But the bill of lading contains no statement of what the rate of freight charged was. The testimony fails to show a definite rate was agreed on between Hawkins Bros, and the defendant’s agent at Bowling Green prior to signing the bill of lading. We gather that the freight was to be paid by the consignee at St. Louis and that no rate was stipulated: The freight charge was 38 cents a hundredweight and the total charge $13.30. There was a conflict in the testimony as to when the bill of lading was signed. As said, the horses were delivered to the defendant for shipment on Sunday afternoon and were injured during that day or the succeeding night. One of the firm of Hawkins Bros, testified that on Monday after the accident occurred, the defendant’s agent brought the bill of lading to him (the witness) to be signed and he signed it. If that was the fact, the agreement restricting defendant’s liability would be invalid. The agent testified the bill of lading was signed on Sunday afternoon before the horses were loaded. That matter was for the jury on the conflicting testimony. What
It is argued that.our Supreme Court appears to Nave overturned by its latest decision on the subject, the ■doctrine that a reduction of the freight charge is a valid •consideration for an agreement between a railway company and a shipper limiting the amount of the former’s liability in case of a negligent loss of the property carried. ' [Ward v. Railroad, 158 Mo. 226, 58 S. W. 28.] In that case there was no reduction of freight accorded to the shipper, the opinion states. Still, language is used which casts doubt on the validity of a contract liquidating a railway company’s liability for the negligent loss of property in consideration of a lower charge for •carriage.
Exceptions were saved to some rulings of the lower ■court on the reception of evidence, but we do' not deem them of sufficient importance to call for comment.
As to the contention that one of the horses died from congestive chills and not from injuries received
The judgment is affirmed.