92 Mo. 343 | Mo. | 1887
Plaintiff brought this action in the circuit court of Cooper county, against the defendant, as a common carrier, to recover the value of a car load of mules, delivered to defendant at Boonville, to be transported
An objection was made to the introduction of any evidence, upon the ground that the petition did not state facts sufficient to constitute a cause of action, which said objection was properly overruled. The petition not only alleged the delivery and loss of the mules, whilst in defendant’s possession, as a common carrier, which was sufficient, but- charged negligence in managing and operating the train, whereby the car was set on fire and the mules burned, injured, and destroyed. No other point was made, in respect to the pleadings, and we need not set them out.
The evidence of plaintiff shows the delivery of the mules by plaintiff to defendant; that the car, in which they were transported, was bedded with straw, and placed next to the engine ; that this was not customary, but unusual and dangerous, and prudence required that such cars should be placed at a greater distance in the train from the engine; that the rear of the train was the safest place, whilst next to the engine was, for such cars, the most dangerous, on account of the liability of the straw bedding to take fire from the sparks of the engine. It should be, also, stated, that the train in question consisted of fifteen or twenty cars, but two of which, beside the one in question, were loaded with stock, and of these, one was placed next to the car containing the mules injured by the fire, or second from the engine, whilst the other was put near the rear end of the train, and next to the caboose. This was the substance of the evidence in chief, in behalf of plaintiff.
Defendant offered no oral testimony in the cause, but relied upon the bill of lading, or contract of shipment, which it set up in the answer and read in evidence
It has been held in this, and most of the states, that, by special or express contract, or special acceptance, fairly and understanding^ made, the carrier may limit his common-law liability. The shipper may, lawfully, if he sees fit, surrender the obligation of the carrier, as an insurer of his property, but the law is firmly settled, in this state, that the common carrier cannot, by any sort of stipulation, exempt himself from the consequences of his own negligence. We need not, again, discuss that question.
If placing the car bedded with straw, containing the mules, next to the engine, was unusual, negligent, and dangerous, and the car was set on fire by sparks from the engine, and the mules thereby destroyed, all of which the evidence for plaintiff shows, without any attempt at contradiction from defendant, then, under numerous rulings of this court, the provision in the contract, whereby the plaintiff assumed “the risk of loss or injury to the mules, by fire, or any account, whatever,” would be, so far, invalid, and no protection to the defendant.
In an analogous case, the Supreme Court of Pennsylvania, in considering the liability of common carriers, say: “A defective wheel, or axle, or frame work, would confessedly render them liable, even as against the release. The carrying of a combustible article, so near the engine as to be exposed to sparks, was even more inexcusable ; for this could not escape observation, as defects in the vehicle might.” Powell v. Railroad, 32 Pa. St. 414. See, also, Holsapple v. Railroad, 86 N. Y. 275. At all events, in the absence of all opposing evidence on the part of defendant in that behalf, this court must, after verdict, assume the negligence of defendant, and dispose of the case under that view.
But the stipulation in the contract of shipment,
Other decisions deny the validity of such provisions, and hold them void, as releasing the carrier from the full and proper liability for the consequences of his negligence. Black v. Trans. Co., 55 Wis. 319; Moulton v. Railroad, 31 Minn. 85; U. S. Express Co. v. Backman, 28 Ohio St. 144. Hutchinson on Carriers says, in-substance, that the cases cited by him as recognizing the right of the carrier to thus limit the liability as to value occur in states in which the law permits the carrier, by special and express contract, to relieve himself of the consequences of his negligence in the carriage of goods, and that these cases would not be considered controlling authority in those states in which such claim to exemption is not permitted to be made. Secs. 247, 250.
But, even under the rule declared in the former class of decisions, these.provisions, thus employed and resorted to by common carriers to restrict their liability, are to be tested by their fairness, justice, and reasonableness. We will consider the case before us briefly under this view. The answer charges that defendant agreed to transport the mules for plaintiff, between said points, at the rate of thirty-one dollars-per car, which was charged to be a special and reduced rate, lower than.
In this case, plaintiff claimed, and was permitted to show by parol evidence, that the said recital in the contract of shipment, that the rate named was a reduced rate, was false, and that the same was the usual and customary rate charged all shippers for similar shipments of such stock by the car load. The oral evidence, in that behalf, was not objected to by defendant, when offered by plaintiff, and no exception saved to its admission in evidence. The following is the substance of this evidence, as given in the abstract for plaintiff, and is, we believe, correct.
R. S. Moore testified that: He was the agent of the railway company at Boonville; that the bill of lading in evidence was of the same form in use by the company in April, 1884, and had been for a year before that time. Everybody that shipped stock used' this form. This is the regular rate of shipment of stock by the car load. The rates on other classes of freight per car load were much higher considering the value of the mules. These were the usual rates paid by all shippers of stock by the car load.
Mr. Frost, who acted in behalf of plaintiff, in making the shipment and signed the contract, testified that;
The written contract was not, we think, under these circumstances, conclusive evidence, but merely prima facie evidence, that the given rate was a special and reduced rate. As between the parties, it was, in this respect, open to explanation, and impeachable for error, mistake, or false statement. The reduced rate, if such it was, was the consideration for the exemption from liability beyond the one hundred dollars, even in case of injury and loss from defendant’s negligence, and parol evidence in that behalf is, we think, competent and admissible for the purpose indicated. The consideration clause in bills of lading, contracts, deeds, and other instruments, ordinarily, has only the force and effect of a receipt, and is open to explanation and contradiction by parol evidence. Hutchinson on Carriers, secs. 122, 123; Fontaine v. Boatman’s Sav. Inst., 57 Mo. 552; Hollocher v. Hollocher, 62 Mo. 267; Edwards v. Smith, 63 Mo. 119.
But, even if this is not so, it devolved upon the defendant to make the objection to the admissibility, and save the exception, if the objection was overruled, and having failed to do so, no complaint can now be heard at his instance in that behalf. This case, then, under this state of facts, does not fall within the rule declared in Hart v. Railroad, 112 U. S. 331, and others cited by counsel for plaintiff. In the case of Hart v. Railroad, supra, especially relied on, the discussion was had upon the terms of the bill of lading alone, and as the court say, “without any evidence upon the subject,, and
On the one hand it may be, as is there said, unjust, unreasonable, and repugnant to sound principles of fair dealing, for the shipper to reap the benefits of a contract, by which he secures a lower rate than the carrier might reasonably charge for the service rendered, if there be no loss, and to repudiate it in case of loss. Where the shipper procures the lawful rates of the carrier to be reduced in express consideration of the agreed value, upon which the compensation is based, he is, under numerous authorities, some of which are cited, held to be estopped to say the value is greater when the loss occurs. On the other hand, it would, we think, be no less unfair, unreasonable, and unjust that the carrier, without any sacrifice of his interest, or lawful demands, or diminution of his lawful charges, should secure, without any consideration therefor, such important advantages and release of liabilities to which he would otherwise be subjected under the law.
Another case, especially relied on, is the case of Harvey v. Railroad, 74 Mo. 538, which we deem distinguishable from this present case, and which we will now examine briefly. In the first. place, the action was brought upon a special contract. The horse was alleged to be of the value of ten thousand dollars, and the value-was limited by the contract to the sum of one hundred dollars. The answer set up the affirmative defence, that the defendant had certain regular rates of transportation for horses of ordinary value, and that for those of greater value five per cent, on the owner’s valuation was charged in addition. -'That defendant asked plaintiff or his agent, the value of the horse, and that said value was falsely represented to be one hundred dollars,
In the case now before us, there was no pretense that the plaintiff, or his agent, fraudulently concealed or falsely represented the real value of the mules. They were delivered without any inquiry or representations as to value. They may have been a somewhat choice lot of mules, but they were not of extraordinary or fanciful value, such as blooded stock, or on account of speed or other qualities, as in the Harvey case, and there is no pretense that defendant was in any way deceived as to their value, or misled as to the degree of care they would require. On the other hand, the recital that the
If, in the one case, it is competent for the carrier to show that the real value of the property was concealed, and the lower rate thus secured by the fraud, or deceit of the shipper, why may not the shipper be permitted to show that the alleged reduced rate, in consideration of which he surrendered the obligation imposed by law upon the carrier, as an insurer of the property, was false and in fact no reduced rate at all. It may be that plaintiff was not deceived by it, at the time, as he did not ask for, or suppose he was getting, a reduced rate, but if the pretended lower rate was the usual rate, and known to be such to both parties, it would work a fraud upon the rights of plaintiff, under the law, if the defendant were permitted to treat it as a lower rate," and to thus deprive plaintiff of important rights, and thus secure release of part of its liability, by reason thereof.
Under the circumstances of this case, there was, we think, no consideration for the limited valuation placed upon the mules by defendant, and the stipulation in that respect is, we think, void, as releasing the carrier from the full and reasonably adequate liability for its negligence. The instructions given for the plaintiff were in harmony with these views, whilst those refused for the defendant were not in accordance therewith.
Finding no error in the record, we affirm the judgment, and it is so ordered.