151 Mo. App. 126 | Mo. Ct. App. | 1910
An opinion was heretofore rendered in this case, but on motion, a rehearing was granted and the cause was reargued.
This was an action for one thousand dollars based upon the common law liability of the appellant in failing to deliver a carload of mules for the respondent within a reasonable time and in failing to transport said mules in a careful manner. The petition, so far as material, is as follows:
“That on the 17th day of December, 1908, plaintiff delivered to defendant and defendant received at the National Stock Yards in East St. Louis, Illinois, one carload of mules in good condition and valued at five thousand dollars, which said carload of mules defend-ant promised and agreed and then and there undertook, for and in consideration of certain freight charges paid, or to be paid to it, to well and safely carry, transport and deliver said mules to plaintiff in as good condition as when received by defendant, and to deliver same to plaintiff at Caruthersville, Missouri, within a reasonable time; that the distance was two hundred and twenty miles, and that twenty hours was a reasonable time within which to transport said property, and that defendant, by the exercise of reasonable diligence, could and should have transported same within twenty hours; but plaintiff charges and avers that defendant, unmindful of its duty as a common carrier and of its agreement as aforesaid, so negligently and carelessly conducted itself in the premises that it did not complete said transportation until forty-eight hours after said mules were delivered to defendant and by it
The answer admitted that the respondent delivered to appellant the carload of mules as alleged in the petition, but denied all liability. Appellant also set up as a defense the contract of shipment entered into on December 17, 1908, wherein the value of the mules was fixed at one hundred dollar's each, which. valuation was fixed for the purpose of securing a reduced rate of freight on the shipment; that the appellant had two rates on live stock; that one was a rate-based on a valuation declared by the shipper limiting, the liability of the carrier to a certain sum in order †©> secure the reduced rate. The answer also set up the provision of said contract that as a condition precedent to recovery for any damages for delay, loss or injury to the mules, the plaintiff would give notice in writing*, of his claim therefor to some general officer or the nearest station agent of the defendant, or to the agent at destination, or some general officer of the delivering line, before the mules were removed from the place of destination, and before they were mingled with other stock, and that sucli written notice should be served within one day after the delivery of the mules at the point of destination, to the end that his claim could be investigated; and that failure to comply with this provision of the contract should operate to bar his recovery of all claims; and the defendant averred that plaintiff failed to comply with sáid provision of the contract» That plaintiff in making the contract expressly acknowledged that he had the option of moving his shipment under the tariff rate either at the risk of defendant, or upon a limited liability, and that he selected’, the limited liability to secure the reduced rate, and'
For replication, the plaintiff denied under oath the execution of the contract, and averred that no contract was made by him which in any way limited' the common law liability of the defendant.
At the trial, the plaintiff offered evidence tending to support the allegations of his petition. It was shown that he shipped the carload of mules over the defendant’s line of railroad from East St.. Louis to Caruthersville, a distance of two hundred and twenty miles, and there was evidence tending to show that twenty hours was a reasonable time for such transportation in the usual course of business; that through the defendant’s negligence it took forty-eight hours to complete the shipment to Caruthersville, and that such time was an unreasonable delay; that by reason of such negligence and delay, the mules were maimed, injured and wounded. The carload of stock reached Hayti, six miles from Caruthersville, at 4:50' p. m. on December 18th, having been in transit at that time twenty-six hours and fifty minutes; that said stock instead of being brought on to Caruthersville was unloaded at PTayti and was not brought on to Caruthersville, according to plaintiff’s testimony, until the next day at 3:00 p. m.; but according to defendant’s evidence, they reached Caruthersville at 9:55 a. m. on the 19th. However, when the mules were unloaded at Caruthersville, they were in bad condition. All, or most of them, had a serious cold and running at the nose, and were skinned, bruised, wornout, drawn, cramped, tired and otherwise in bad shape by reason of the long delay in transit and the manner in which they were transported.
The plaintiff, during his testimony, stated that he had bought the twenty-eight mules of Sparks Bros.
At the trial, the contract of affreightment was introduced in evidence, and is in part, as follows:
ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY..
READ THIS CONTRACT CAREFULLY, AS NUMEROUS CHANGES HAVE BEEN MADE.
Notice.
THIS COMPANY HAS TWO RATES ON LIVE STOCK. Shippers of Live Stock will take notice- that rates of freight, and the extent of liability of the Company, are governed by the valuations which they place thereon. Rates of freight are on file and will be sliown by Agent on Application.
To the St. Louis and San Francisco Railroad Company: .
The undersigned offers for shipment over your road 28 head of mules from National Stock Yards, 111. to Caruthersville, Mo., each head of the estimated weight of 1000 pounds, and valued at One Hundred Dollars per head and .............. head of .......... from .......................... to ....................■.......... each head of the estimated weight of ............ pounds, and valued at ...................... Dollars per .............. which valuation is named by me for the purpose of securing a reduced rate of freight on this shipment; and I agree that in case of loss or damage to same said valuation so named shall he conclusive, should I make any claim for such loss or damage against any carrier ovgr whose line the 'same may pass.
SPARKS BROS. MULE CO.
For J. M. McELYAIN,
WITNESS: Owner or shipper.
R. THOMPSON.
The St. Louis and San Francisco Railroad Company accepts this shipment and the above valuation as a basis for fixing the rate of freight thereon.
ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY,
By G. W. Thompson, Agent.
Note. — The rates of freight on Live Stock are fixed in view of the nature and extent of liability, assumed by the carrier, and all Muds of live stock shipped in car loads under contract similar to the following, limiting the liability of the carrier, are taken at reduced rates; all kinds of live stock will be taken at carrier’s risk if the shipper so elects, at rates provided by the existing tariffs, classifications, and under the provisions and conditions relating thereto; and in either event no agent of this Company has any power to bind it in any way, with regard to the shipment of live stock, except by written contract.
DUPLICATE.
LIVE STOCK CONTRACT.
This agreement, made at National Stock Yards, 111., station De■eember 17, 1908, between the St. Louis and San Francisco Railroad ■Company, hereinafter called “the Company,” party of the first part, and J. Mi McElvain, hereinafter called “the shipper,” of the second part, 'Witnesseth: That for and in consideration of the consideration's hereinafter mentioned, the party of the first part will transport for the said second party, the following cars of Live Stock described below, and the parties in charge thereof, as hereinafter provided, viz.: One car said to contain 28 head of mules and being consigned to J. M. McElvain from National Stock Yards, HI., station to Caruthersville, Mo., station on the line of the Company, and at said last named station to deliver the same to a carsrier, whose line may form a part of the route to.................. hereinafter called the place of destination, at the rate of ........ per......said rate being a special rate and less than the rate charged for shipments transported at carrier’s risk; in consideration of which reduced rate it is mutually agreed between the parties hereto :as follows:
G. W. THOMPSON, Agent.
For the St. Louis and San Francisco Railroad Co.
SPARK BROS. MULE CO., Shipper.
For J. M. McElvain.
Witness:
R. THOMPSON.
R. L. Ward, plaintiff’s attorney was placed on the stand as a witness for the defendant and gave testimony as follows: “Q. Yon are attorney for the plaintiff in this case? A. Yes, sir. Q. Will you examine this contract? (Which the witness does.) Q. You have produced this contract in court this morning? A. Yes, sir. Q. Tell how you obtained this contract. A. I wrote to Sparks Bros. Upon an inquiry as to when the mules in controversy were shipped, when loaded out and their condition, together with the letter they sent me in answer to those inquiries this, what do you call a contract.” Cross-examination: “I will state that was sent me after the suit had been filed here, and as far as I am advised Mr. McElvain never saw this contract and didn’t know I had it until this morning. I showed him the date as to ivhen it showed they had been shipped.”
J. A. Moran, a witness for the defendant, testified, in part as follows: “Am cashier of the Frisco at Hayti, Mo., and was located'there in December, 1908. Q. Examine that and state if it is the standard form of shippers ’ contract of live stock over the Frisco railroad. (Witness is shown contract offered in evi
J. R. McKnight testified for the defendant as follows: “I am the station agent at Caruthersville and have been ever since November, 1908. The freight rate of shipment from East St. Louis to St. Louis on a carload of mules or horses is $4.00' a ear; that is the terminal, across the river to St. Louis; and the rate from St. Louis to Caruthersville is twenty-one cents a hundred. Q. When you say hundred, you mean in weight or value? A. Twenty-one cents per hundred pounds, the weight of the stock. Q. Is there any difference as to value? A. Tes, sir. Q. What is that now? A. Well, in ease of horses and mules, why it is $100 valuation per head, it takes a. twenty-one cent rate. Q. If there was more than $100 per head, what is the rate? A. Twenty-five per cent. Q. Twenty-five per cent of what? A. Of the increase. I will read this: ‘When the declared'value exceeds the above, an addition of twenty-five per cent will be made to the rate per hundred pounds.’ That I understand to be twenty-five per cent of the twenty-one cents, which would make it about twenty-six and one-fourth cents instead of twenty-one. Q. The shipper then has the option of fixing the value? A. Yes, sir. Mr. Ward:
Plaintiff obtained judgment in the sum of $560 from which the defendant has appealed.
At the conclusion of the evidence in the trial court, the defendant tendered and the court overruled a demurrer to the evidence. Defendant also asked and the court refused to give the following declaration of law:
“5. The court further declares the law to be that by the contract of shipment entered into between the plaintiff and the defendant, as a condition precedent to recovery for any damages, delay, loss or injury to .his stock shipped, it was agreed that plaintiff should give notice, in writing, of his claim therefor to some general officer or the nearest station agent of the defendant, or to the agent at destination, or some general officer of the delivering line, before his stock were removed from the point of shipment or from the place of destination, and before they were mingled with other stock, and that such written notification was to be served within one day after the delivery of his said mules at destination, to the end that his claim, whatever it may be, should be fully and fairly investigated, and that a failure to fully comply with the provisions of this clause should be a bar to a recovery of any and all such claims; and if the court finds from the evidence that the plaintiff failed to give such written notice, as required by said provision in said contract, and within the time, to-wit: one day after the delivery of his stock at Caruthersville, then he is not entitled to recover, and the court will find the issues for tha defendant.”
• The contract of shipment, in consideration of the reduced rate, specially provided that before a recovery could be had for delay, loss or injury, a notice in writing of the claim therefor must be served within one day after the delivery of the stock at destination and before the stock was removed from the place of destination and before being mingled with other stock. Plaintiff testified in so many words that no such notice was given.
The evidence shows that plaintiff was not present in East St. Louis at the time the shipment was made; that he purchased the mules of Sparks Bros, who were directed by him to ship them, and plaintiff went away; that it was his usual practice whenever he bought mules to allow the party from whom he purchased them to do the shipping, and that such parties put the directions on the car and attended to the shipment, and that plaintiff had nothing to do with that; that he trusted in this instance to Sparks Bros, to ship them out for him. Plaintiff claims that Sparks Bros, were not his agents for the purpose of making the contract offered in evidence limiting the liability of the carrier; that he knew nothing of their having made such a contract, and he filed an affidavit in the nature of a plea of non est factum in his reply denying the authority of Sparks Bros, to' execute this contract. The bill of lading containing the contract limiting the liability of the railroad company was offered in evidence and was in the possession of the plaintiff at the trial and it was not denied that the contract was ex- ' ecuted by Sparks Bros, for the plaintiff at the time of the shipment of his carload of mules, the contro
When goods are put in charge of an agent to deliver to a carrier, he is presumed to have authority to make the necessary contracts at the point of shipment, and such authority includes all the necessary and usual means for carrying the contract into effect. One of the necessary incidents to the shipment is to arrange with the carrier to receive the goods and route them and agree on terms of shipment. Accordingly, it is a general rule that the shipping agent must be regarded as having authority to stipulate for and accept the terms of transportation. This includes authority to assent to the usual terms of such contracts releasing carriers from their strict common law liabilities as common carriers of goods. [31 Cyc. 1402; Craycroft v. Atchison, T. & S. F. R. Co., 18 Mo. App. 487.] Under the law governing principal and agent, Sparks Brothers, under the authority given them by the plaintiff, undoubtedly had power to execute for him the contract of affreightment, and plaintiff is bound by their acts.
The'provision of the contract requiring written notice, when reasonable, has been uniformly upheld by the courts. Its purpose is to enable the carrier, while the occurrence is recent, to better inform itself of what the actual facts occasioning the loss or injury are and thus protect itself against claims which might be made after such a lapse of time as to make it difficult if not impossible to ascertain the truth and protect itself from imposition and fraud. It is, therefore, not.an unreasonable condition that the shipper should be required, as a condition precedent to enforcing liability against the carrier, to give noticé of his claim according to the reasonable conditions of the contract. [Hutchinson on Carriers, (3 Ed.), sec. 442.] The effect of such agreement is to require the one who has the peculiar knowledge to inform the other who has
The notice required by the contract could readily and conveniently have been given to the station agent at Caruthersville as required by the contract before the removal of the mules, and thus an opportunity would have been afforded the carrier to have examined the mules and found fi> what extent they were injured before they were mingled with other stock. The shipper here agreed to this provision, and as to whether his agents — Sparks Brothers — had forwarded the contract containing this provision so that he would be.informed of the necessity of complying with such contract would make no difference. He had employed Sparks Brothers as his shipping agents and was bound by the provisions of the contract, and ample time had elapsed in order to have obtained his contract of affreightment before the mules arrived at the point of destination. The plaintiff claims that he had no notice that his agents had made any contract in his behalf as
The validity of the provisions in the contract as to the carrier’s limitation of liability are challenged on the ground that they are not supported by any consideration. In many jurisdictions outside of Missouri, such stipulations requiring written notice before the removal of stock from cars at destination by the shipper are upheld as proper regulations, and as such are valid without any independent consideration. Generally speaking, the theory of such authorities is that if the contract in that respect is just, in view of the circumstances . of the particular case in judgment, such stipulations are sustained as provisions which a carrier may insert in the contract as a reasonable regulation of the shipper’s right, notwithstanding its common law obligation to carry. Such authorities hold that instead of being a limitation upon the carrier’s liability at common law, they are no more than a reasonable regulation touching the shipper’s right, or a regulation going to the remedy, and as such they are enforced even in negligence cases, if otherwise reason
Were we to follow the decisions of the Federal courts in this case because the contract in question grew out of an interstate shipment, the consideration expressed is sufficient to support the special limitation on the common law liability. In the ease of Cau v. Railway, 194 U. S. 428, the Supreme Court of the United States said: “It is again urged that there was no independent consideration for the exemption expressed in the bill of lading. This point was made in York Co. v. Central Railroad Co., supra. In response it was said: ‘The second position is answered by the fact that there is no evidence that a consideration was not given for the stipulation. The company, probably, had rates of charges proportioned to the risks they
The construction of the Ilepburn Act and the scope of its operation is a Federal question, and as to such question the state courts will follow and are bound by the decisions of the Federal courts. But contracts for reduced rates, not being affected by such law, no federal question arises and no federal right is involved, and hence the state courts are free to apply their own rules to its construction.
In reaching a correct conclusion in the. present case, the particular language of the contract is to be considered. It is a different contract from the one passed on in the George case. This contract contains a special agreement as to the value of the property to be shipped, and by its terms fixes the maximum value at the specified amount of one hundred dollars on each mule, which is fixed by the shipper for the purpose of securing a reduced rate of freight on the shipment, and provides that said reduced rate is a special rate, less than the rate charged for shipments transported at the carrier’s risk, in' consideration of which reduced rate the parties mutually agreed, among other things, to the terms of the contract as to the shipper giving written notice if damages for injuries to stock was claimed, and that such notice should be given before the stock was removed from the place of destination. Of course it would necessarily follow that no prima facie case would be made, because no consideration is shown to support the shippers’ contract, if the contract on its face disclosed that “no reduced rates are contracted for” or that the rate charged was a full tariff rate, or that there was no special or reduced rate. In the
The provision of the shippers ’ contract under consideration was evidently drawn for the purpose of meeting the ruling of the Supreme Court in the George case, and it seems adequate for that purpose. We find no substantial discrepancy between the decisions of our
In the present case, the appellant did not rely alone on making' a prima facie case by simply offering in evidence the contract, but proceeded to offer independent evidence showing a consideration and the testimony of witness McKnight tended to corroborate the written statements and admissions contained in the shippers’ contract. It is claimed by the respondent that the evidence of the defendant’s witness, Moran, tended to show that the defendant company had only one rate on shipments of live stock instead of two and that his testimony on that question authorized the court sitting as a jury to find such issue for the respondent. Moran was a cashier for the defendant company at Hayti, Missouri, and there is no showing that he had any such official connection with the defendant company as would give him any knowledge on the rate question. As a witness, he is shown a written contract and testifies that he does not know whether plaintiff signed it or not, that he never saw it before, and expressly states that he does not know how much freight McElvain was charged. The witness then proceeds to state his conclusions as to a written and standard form of contract presented to him' to the effect that “he was charged what everybody else was charged unless released at that valuation.” The writing to which the witness refers is not offered in evidence nor is its contents given. The witness further states that he could not say what tariff would be charged under the valuation shown him, but that this was a tariff rate as far as he knew.
To sustain a finding from such proof that the defendant company had only one rate as against the recitals in the written contract and the testimony of J. R. McKnight, the station agent of the company at
Nor can we agree to the further contention, so ingeniously and ably urged by respondent’s counsel, that the plaintiff, by Sparks Bros., executed two separate and independent contracts, and that each one of them must be supported by its own consideration, and that the evidence fails to show any consideration for the second contract designated “Live Stock Contract.” We cannot think after a careful reading of this contract that there can be two conclusions as to its meaning. At its very commencement, it is headed in bold type: “Notice. This company has two rates <on live stock. Shippers of live stock will take notice that rates of freight, cmd the extent of liability of the company, a<e governed by the valuation which they place thereon.” Then follows an application by the plaintiff to the defendant company in which the shipper offers for shipment over the defendant’s railroad twenty-eight head of mules of the estimated weight of one thousand pounds each and valued at one hundred dollars per head “which valuation is named by me for the purpose of securing a reduced rate of freight on this shipment. .... This application is an election on my part to avail myself of a reduced rate, by making this shipment under the following contract, limiting’ the liability of such carrier* instead of shipping the same at a higher rate, without such limitations.” Then follows the acceptance by the defendant company of the shipment and the valuation agreed on as the basis for fixing the rate of freight thereon. Then follows a notice stating that “the rates of freight on live stock are fixed in view of the nature and extent of the liability, assumed by the carrier, and all kinds of live stock shipped in carloads under a contract similar to the following, limiting
Another contention of the respondent is that the contract as to the limitation of its liability is invalid because it was an interstate shipment, and that under the Federal law — the Carmack amendment to the Hepburn act — it is void whether or not it is supported by a consideration.
The complaint here .is a common law action. No federal question is presented by the pleadings. The shipment was an interstate one. The Interstate Commerce Act is a part of the law of the State of Missouri, and enforceable in its courts when rights under it or given by it arise as incidents of a trial. [Pittsburg, C. C. & St. L. Ry. Co. v. Mitchell, 91 N. E. 735.]
An interstate common carrier is free to exercise all its rights under the common law to the full extent-unless such exercise has been made unlawful by the Interstate Commerce Act. [Union Pac. Ry. Co. v. Updike Grain Co., 178 Fed. 223.] The Interstate Commerce Act [Act Feb. 4, 1887, c. 104, 24 Stat. 386, (U. S. Comp. St. 1901, p. 3169), passed June 29, 1906 (Act June 29,1906, e. 3569, sec. 7, 34 Stat. 593), U. S. Comp. St. Supp. 1907, p. 906] reads as follows: “That any
“It has been heretofore held at common law, and frequently stipulated by express provisions of shipping contracts that the liability of each carrier is confined to losses occurring on his own line. This rule, in cases of interstate carriage, has now been abrogated, and hereafter the initial carrier remains liable to the shipper for losses occurring on the lines of connecting carriers, as well as on his own, having a right of recovery over against the connecting carrier if the loss has occurred on the line of the latter. The defendant’s contention is that this is the whole extent to which the
It will be seen by the terms of this statute — the Carmack amendment to the Hepburn Act — that it forbids the making of a contract, receipt or regulation exempting the carrier from the liability, imposed by the statute. There is but one liability which can properly be said to be imposed by the statute, and that is the liability of the initial carrier for a loss occurring on the line of a connecting carrier. This is a new liability, created and imposed by the statute. The liability of the carrier for losses occurring on its own line is not new; it is not created or imposed by this statute, but existed before the statute was passed. The statute is completely satisfied, therefore, by construing it as creating and imposing on the initial carrier a new liability, and forbidding an exemption by stipulation or agreement from that new liability, which, as we have stated, is the liability of the initial carrier for losses occurring on the line of a connecting carrier. The use of the word “exempt,” as applied here, is to prevent a carrier from • relieving himself altogether from the liability for a loss occurring on the line of a connecting carrier, but the use of the word “exempt” is “wholly inappropriate if intended to provide an agreement between the carrier and the shipper as to the value of the goods to be shipped.” [Greenwald v. Weir, 115 N. Y. Supp. l. c. 314.] In other words, the Interstate Commerce Act has no effect in. any way to limit the contract between the shipper and the carrier for a reduced rate.
But although the shippers’ contract is clearly unambiguous and prima facie what it purports to be, the question whether it was made and entered into understandingly and in good faith for the purpose stated and so as to constitute a contract at all, must be determined from the facts and circumstances surrounding its execution. For the purpose of showing that the plaintiff did not assent or agree to the terms of the contract, extrinsic‘evidence is admissible, not to 'contradict its express terms, but to show whether it was fairly and honestly entered into. [Boorman v. Express Co., 21 Wis. 152; King v. Woodbridge, 34 Vt. 565; Black v. Railway Co., 101 Ill. 352; O’Malley v. Great N. Ry. Co., 90 N. W. 974; Madam v. Shevard, 73 N. Y. 329.]
There can be no limitation of liability without the assent of the shipper and there can be no valid stipulation for an exemption by a carrier which is not reasonable in the eye of the law. [Cau v. Railway, supra.] If the plaintiff contends that his signature to this shippers ’ contract, which includes the release pleaded by the defendant, was fraudulently and wrongfully procured from his agents, he should have tendered that issue by proper allegations in his reply-as provided, by section 654, Revised Statutes 1899. [Freeman v. St. L. & S. F. R. Co., 138 Mo. App. 322, 122 S. W. 1.] If the carrier did not allow the shipper the privilege of choosing between a restricted and a full liability, or if the pretended agreed valuation is not such in fact, but simply a cloak for a limitation of liability to a fixed sum which is less than the real value, the contract will not be valid as against a loss due to negligence. [6 Cyc.
It therefore follows that the judgment should be. reversed and the cause remanded. However, the decision which we have reached is in conflict with the opinion of the Kansas City Court of Appeals in the case of Holland v. Chicago, R. I. & P. Ry. Co., 139 Mo. App. 702, 123 S. W. 987, on the interpretation of the Car-mack amendment to the Hepburn Act, and with the opinion of the St. Louis Court of Appeals in the case of Blackmar & Post Pipe Co. v. M. & O. R. Co., 137 Mo. App. 479, 119 S. W. 1, on the same proposition, and this case is accordingly certified to the Supreme Court for its decision.
