Meade v. Missouri, Kansas & Texas Railway Co.

183 Mo. App. 353 | Mo. Ct. App. | 1914

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiff through the breach of a contract of carriage. Plaintiff recovered and defendant prosecutes the appeal.

The controversy in the case relates to a limitation on the amount to be recovered under the contract in suit, and this is to be determined on a consideration of the form of the action employed. Defendant is a common carrier of passengers and baggage. On February 15, 1910, plaintiff purchased á ticket from defendant in.St. Louis, entitling her to passage for herself and baggage from St. Louis, Missouri, to Brownsville, Texas, and return, over defendant’s railroad. It appears the ticket was a “homeseekers’ excursion ticket”, but it entitled plaintiff to first-class passage. On this ticket she checked her baggage, among which was a suit case, which contained numerous articles of wearing apparel. The suit case and contents were evidently lost in transit, for it was never delivered to' plaintiff; but there is no evidence tending to prove negligence on the part of defendant with respect of the matter. How or where the suit case was lost does not appear, and plaintiff made no effort to show that it occurred through the negligence of defendant.

Although the transaction is interstate in character, the tariffs and rates, if any, on file with the Interstate Commerce Commission, are not in evidence, and no question is made 'on that subject-matter.

The ticket is not of the small card variety, but rather is an extended one, in the form of a contract between the parties, and this contract is printed in plain type. Certain agreements and conditions are set forth therein, and it appears plaintiff subscribed to the same by signing her name thereto as the original purchaser. Among other things, it is agreed between the parties, and the contract printed on the ticket so recites* as follows:

“4th. Baggage liability is limited to wearing apparel not to exceed one hundred dollars in valué for a whole ticket and fifty dollars for a half ticket.”

Defendant offered to pay plaintiff the sum of $100 on account of the loss of her suit case containing the wearing apparel mentioned, but she declined to accept it, and instituted this suit instead for $1050.50. By its verdict the jury awarded plaintiff a recovery of $379.75. The evidence tends to prove that such was the amount of the actual loss sustained. At the trial plaintiff introduced considerable evidence tending to prove that, though she signed the contract contained in the ticket, at the time it was purchased, she was in nowise advised of its contents. Moreover, it is said the ticket agent assured her the ticket contained no limitations- on defendant’s liability, and that it entitled her to first-class passage in every respect. On this evidence plaintiff was permitted to recover the full measure of her loss, as though the limitation prescribed on defendant’s liability in the fourth paragraph of the contract printed on the ticket over plaintiff’s signature was without avail. Obviously this was error, in view of the fact that the suit proceeds as for a breach of the contract of carriage. Such being true, of course, plaintiff is bound by all of the terms of the contract for the breach of which she sues. By declaring upon the contract, plaintiff affirms its validity in every part. [American Silver Mfg. Co. v. Wabash R. Co., 174 Mo. App. 184, 199, 156 S. W. 830; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 260, 112 S. W. 249; Sage v. Finney, 156 Mo. App. 30, 135 S. W. 996.] She may not sue upon it to recover compensation for her loss, and at the same time repudiate the stipulation contained therein, by which she and defendant agreed upon the extent of such compensation in the contingency of a loss. In a suit on the contract, the terms of the contract' must control, and this is true though the recovery is sought on a contract contained in a railroad ticket, duly signed by the purchaser, who sues upon it to compensate the loss of baggage. [See Boylan v. Hot Springs R. Co., 132 U. S. 146.]

But though such be true, it is argued on the part of plaintiff that the suit here proceeds ex delicto as for a breach of the obligation annexed by law to the calling of the carrier, and not upon the contract at all. In this view, it is urged that it is competent to look to the evidence tending to show the contract was unadvisedly entered into by plaintiff. To determine the form of the action, it is necessary to set forth and consider so much of the petition as is relevant to that matter. The averments are as follows: ,.

“Plaintiff avers that defendant agreed, for and in consideration of the sum of twenty-five dollars, then and there paid by plaintiff to the defendant, to well and truly carry the above enumerated articles, which were contained in a receptacle commonly known as a suit case, and also to carry plaintiff therewith, from St. Louis, Missouri, to Brownsville in the State of Texas, and at the last mentioned place to deliver the personal property, goods and chattels above described to plaintiff in as good condition as when.received by defendant.

“Plaintiff avers that defendant, in violation of its said agreement, and in total disregard of its duty as a common carrier, as aforesaid, failed and neglected to deliver said property at its destination to plaintiff and that all of the same has been wholly lost to plaintiff.”

It appears from this that plaintiff sets forth a contract entered into on the part of defendant with her in consideration of the sum of $25. It avers that, for this consideration, defendant agreed to transport plaintiff and her suit case to Brownsville, Texas, and deliver the property above- described to plaintiff in as good condition as When received; moreover, that defendant, “in violation of this agreement and in total disregard of its duty'as a common carrier, failed and neglected to deliver said property at its destination.” Obviously this reveals a purpose to declare upon the contract, rather than upon the common-law liability of the carrier, for though the latter is referred to in the words “and in total disregard of its duty as a common carrier,” the promise and the consideration therefor are clearly set forth as well as a violation of the agreement alleged. No one can doubt that one may pursue a common carrier for a loss, such as that involved here, either in an action ex contractu or in one ex delicto, at the option of the pleader. However, 'though the pleader may elect for either contract or tort, he is bound by and must recover upon the theory of his pleading. [See Wernick v. St. Louis, etc., R. Co., 131 Mo. App. 37, 109 S. W. 1027; See 3 Ency. Pl. & Pr. 818, 819, 820; 3 Hutchinson, Carriers (3 Ed.), (M. & I).), Sec. 1324.] The form of action ex delicto is usually preferred, and the courts are prone to so regard a petition if such course is at all permissible. In this view the courts frequently treat a petition, against a common carrier, which sets' forth by way of inducement that “it agreed” or “undertook,” etc., followed by averments suggesting a tort, as one proceeding ex delicto. [See 3 Ency. Pl. & Pr. 819, 820, 821, 822; Canaday v. U. Rys. Co. of St. Louis, 134 Mo. App. 282, 114 S. W. 88.] Our own courts construe petitions in cases of this character as declaring ex delicto for a breach of the duty annexed by law to the calling of the carrier, when the essential elements of a contract—that is, both the agreement and consideration—are not set forth therein and declared upon. [See Clark v. St. Louis, etc., R. Co., 64 Mo. 440; Heil v. St. Louis, etc., R. Co., 16 Mo. App. 363.] But when the plaintiff’s petition, as in the instant case, sets forth the essential elements of a contract—that is, an agreement of the parties on a consideration stated—and then avers the breach of snch agreement, the proceeding is accepted and treated as a suit on contract for a breach of the contractual obligation, rather than for a breach of the obligation annexed by law. [See Wernick v. St. Louis & S. F. R. Co., 131 Mo. App. 37, 42, 43, 109 S. W. 1027.]

Indeed, such seems to be the settled rule of decision on the subject. 3 Ency. PI. & Pr. 822 thus states the law: “A mere averment of a promise, or the use of the words ‘undertook’ or ‘agreed,’ does not constitute a declaration on contract. It is necessary to allege not only a promise or undertaking, but also a consideration therefor.”

Mr. Hutchinson, in his splendid work on Carriers (3 Ed.), Sec. 1328, states the law on this question to the same effect precisely as follows:

“Notwithstanding these essential differences between actions on the case and in assumpsit against the carrier, it seems to have been in former times, a very perplexing question how the one form of action should be distinguished from the other. The declarations in •the two kinds of actions, according to approved formulas, were so nearly alike, that in many cases the astutest judges became perplexed in their efforts to find out to which class the declaration belonged. It seems, however, to be finally settled, that while the allegation of a promise in the declaration will not be sufficient to impress upon it the distinctive feature of a declaration upon the contract, because tbe words ‘ agreed, ’ ‘ undertook, ’ or even the more significant word ‘promised,’ must be treated as no more than inducement to the duty imposed by the common law, yet if there be an averment of a promise and a consideration, the declaration will be construed to be upon the contract, and not for the breach of duty. And consequently, when the word ‘consideration’ was left out, the action was held to be in tort.”

It therefore appears that, manifestly, the pleader elected to pursue the defendant here as for a breach of its contract, for, in the petition, plaintiff sets forth the essential elements of the contract, that is to say, both the promise and the consideration therefor—that is, $25—and that defendant violated its said agreement in failing to , deliver the suit case to plaintiff at the point of destination. This being true, the mere fact that the petition recites conjunctively therein “and in total disregard of its duty as'a common carrier” is unimportant in determining the form of the action, for the words so carefully chosen to portray a contract and set forth its breach prevail over the mere phrase so conjoined.

The suit, proceeding on the contract, as it does, it appears the limitation of $100 valuation for loss of baggage must be treated as, valid, whatever the facts of the case may be, and a recovery beyond that may not be allowed.

The judgment should be reversed and the cause remanded with directions to enter judgment for the plaintiff for such amount. It is so ordered.

Reynolds, P. J., and Allen, Jconcur.