196 Mo. 663 | Mo. | 1906
—This is an appeal from a judgment of the circuit court of the city of St. Louis, for the plaintiff, for $1,548.97.
The action was for damages to the amount of two thousand dollars for a failure to safely carry from St. Louis to Twist, Texas, eight hundred kegs of blasting powder, eighty cases of forty per cent dynamite, and two barrels of D. T. fuse, and to deliver the same to W. R. Stubbs Contracting Company in as good condition as when received by defendant.
While enroute the car in which the said powder was stored, and said powder, were destroyed by fire and was never delivered. The defendant pleaded a special written contract with plaintiff whereby in consideration of a reduced rate of freight, it undertook to transport said goods to the end of its line only, and that by said special agreement neither defendant nor any of its connecting lines should be liable for the loss
The reply was a general denial of the new matter set up in the answer, and also set up facts surrounding the destruction of the car of explosives, and upon those facts charged that the destruction of the ear was due to the negligence of the defendant. On the first trial of the case the plaintiff was nonsuited in the circuit court, and appealed to the St. Louis Court of Appeals, and the judgment was reversed and the cause remanded with a direction that the only matter to- be investigated in the ease, was the amount of the damage sustained by plaintiff. [Phoenix Powder Mfg. Co. v. Railroad, 101 Mo. App. 442.]
Upon the return of the ease to the circuit court, an amended answer was filed, which was the same as the original answer except that it contained the following allegations:
“Defendant says that in the month of March, 1901, as well as long prior thereto, a certain act of Congress of the United States, entitled, ‘An Act to Regulate Commerce,’ approved February 4, 1887, with the various amendments thereto, enacted by said Congress in*667 the years 1888, 1889, and 1891, respectively, was in full force and controlled all shipments over the railroad of defendant from all points on its lines in Illinois and Missouri, to all points on its connecting lines in the State of Texas, and elsewhere beyond the state line of Missouri. That in due compliance with said law of the United States then and there in force as aforesaid, defendant had in March, 1901, and .still has, on file with the Interstate Commerce Commission, a body created by said act of Congress above cited, at the office of said commission in the city of Washington, D. C., its printed schedules or tariffs, showing the rates of freight then in force, for all classes of property, including live stock, from all points on its own railway in one state, to points on its own and connecting lines of railway in other states; that said schedule and tariffs were then, as now, duly printed, published and filed by defendant, in strict conformity to the said laws of the United States then in force as aforesaid. That said act of Congress of the United States, entitled, ‘An Act to Regulate Commerce,’ approved February 4, 1887, with the various amendments thereto, enacted by said Congress of the United States, in the years 1888, 1889 and 1891, respectively, were in full force and effect at said time, and are now valid statutes, duly enacted by said Congress of the United States, and that said Congress of the United States was then, as now, duly authorized and empowered to enact such laws, and that under said valid statutes of the United States said contract of shipment, as contained in the bill of lading hereinbefore set forth, supported and based upon said reduced rate as aforesaid as a consideration therefor, as hereinbefore set forth, was a valid and subsisting agreement for the transportaton of the property therein described,, between the states therein named, which could not, under the penalties then and there prescribed by said valid statutes of the United States, be departed from,*668 varied, modified, controlled, abrogated or repudiated by either the plaintiff or the defendant herein.
“Further answering, defendant says, that any construction of said statutes of the United States, or upon said interstate contract of shipment, as aforesaid, placed upon either said statutes or said contract of shipment which would abrogate, modify or destroy said contract, as hereinbefore set forth, would be a violation of the fifth and fourteenth amendments to the Constitution of the United States, as well as of section 30 of article 2 of the Constitution of Missouri, in that such a construction by said courts of said statute, or of said contract, would deny to the defendant herein the equal protection of the laws of the United States, and also deprive the defendant herein of its property without due process of law, and also deny to the defendant herein, a right, privilege and immunity guaranteed to it by the Constitution and laws of the United States, as well as of the State of Missouri. Wherefore defendant says that plaintiff ought not to have or maintain this action, and having fully answered, prays to be discharged with its costs.”
The reply denied all new matter contained in the amended answer. Upon the trial the bill of lading was in evidence and no rate of freight was named in it and there was absolutely no pretence that the plaintiff or any agent of it and the defendant, or any of its agents, had ever agreed verbally upon a reduced rate or even discussed such a thing. There was not a word to show plaintiff knew it was to receive a reduced rate, and there was no testimony to show plaintiff was in the habit of shipping over defendant’s road. While defendant’s counsel concede this, they seek to fasten up.on plaintiff, constructive knowledge that it was to receive a reduced rate. As pithily put by Judge Goode, on the appeal in the St. Louis Court of Appeals, 101 Mo. App. l. c. 455, “Their argument runs in this wise: The contract showed on its face a limitation of defend
