Phoenix Powder Manufacturing Co. v. Wabash Railroad, 101 Mo. App. 442

101 Mo. App. 442 | Mo. Ct. App. | 1903

GOODE, J.

We think the learned circuit judge erred as regards the tehdency of the evidence to prove the property in "suit was destroyed as the result of the negligence of the connecting railway companies. To our minds there was plenty of evidence to warrant the inference that it was carelessness of a gross character to leave a car of explosives on the transfer track at Bowie during three or four days, and no reason was given why it was left there so long, instead of being promptly forwarded to its destination. The highly combustible nature of the property in the car was announced by a placard on the outside, and whether the risk of loss by fire was so apparent as to warn railway employees in charge of the car against letting it stand several days unguarded on the transfer track, was a question on which the plaintiff was entitled to the jury’s decision.

But we are- of the opinion that the defendant’s responsibility for the loss of the property is fixed by its ordinary obligation as a common carrier and does not depend on proof of negligence. The contract between the parties was for a through shipment, as is conceded, and therefore the defendant’s responsibility in whatever degree it existed, continued until the goods arrived at destination, and there is no contention to the Contrary. McCann v. Eddy, 133 Mo. 59.

The defendant takes, its stand on the clause of the receipt or contract of affreightment exempting it from liability for the destruction of the property by fire, as constituting a complete defense to the plaintiff’s action ; and this position is invulnerable if the evidence shows the exemption was allowed by the plaintiff in a valid and binding manner. Such an exception to a common carrier’s liability as an insurer of freight, can be created only by a special agreement between the shipper and the carrier for an adequate consideration. Levering v. Union Trans. Co., 42 Mo. 88; McFadden v. Railroad, 92 Mo. 343; Kellerman v. Railroad, 136 Mo. 177, 68 Mo. App. 255; Richardson v. Railroad, 149 Mo. 311; Conover v. Express Co., 40 Mo. App. 31; Rogan v. Railroad, 57 Mo. App. 550; Vaughn v. Railroad, 78 Mo. App. 639. As the shipper is always entitled to the benefit of the extraordinary responsibility imposed on common carriers by the law in order to adequately shfeguard the public, the carrier is held to that measure of responsibility, if litigation arises over property lost in transit, unless it can show affirmatively that the shipper released it from part of its liability for a satisfactory consideration; and the agreement to release must appear to have been fairly and understandingly made.

In Levering v. Transportation Company, supra, it was said:

“It is the imperative duty of a common carrier to receive whatsoever goods are offered to him for transportation in the usual course of his employment, and he takes them with all the responsibilities attached by law to his calling or employment. He can not vary his liability by inserting conditions in his acceptance of goods but to have this effect of exonerating him, there must be a special contract assented to by the shipper.”

That to relieve the carrier of a portion of his duty requires intelligent action by the shipper, appears, too, from the opinion in McFadden v. Eailroad Company, supra:

“It has been held in this, and most of the States, that, by special or express contract or special acceptance, fairly and understandingly 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. ’ ’

The same doctrine is expressed or implied in all the cases cited above and is prevalent in all common-law jurisdictions. New Jersey, etc., Co. v. Bank, 6 How. (U. S.) 344; 4 Elliot, Railroads, sec. 1504, and citations.

An essential ingredient of an agreement by the shipper to forego so valuable an indemnity against loss as a carrier’s extraordinary liability is, of course-, a consideration; and the usual or, perhaps, invariable consideration for such contracts, is an undertaking to transport the freight for a smaller charge than is otherwise exacted. The defendant sa3rs that was the consideration for the exemption relied on in this case and that it was assented to by the plaintiff in the contract of car"riage; but in onr judgment, tbe evidence does not bear ont tbe defendant’s contention. All tbe evidence relating to tbe freight rate to be charged by tbe defendant has been stated, and it proves that no rate was named in tbe bill 'of lading or agreed to verbally. In fact the rate was not mentioned by either party and there is nothing to show tbe plaintiff knew it was to receive a reduced one; no testimony even that it was in the habit of shipping over the defendant’s line and could have thereby learned its charge varied, accordingly as the goods were received at its own or the shipper’s risk. While def end-ant’s counsel admit the rate was neither fixed nor alluded to in the contract of affreightment, nor verbally mentioned, they endeavor to fasten constructive knowledge of what it was on the plaintiff by a series of presumptions. Their argument runs in this wise: The contract showed on its face a limitation of defendant’s liability, which the plaintiff is presumed to have known; in consideration of this limitation a smaller freight charge was always made in accordance with a tariff of rates which had been fixed by an association of railway companies, vised by the Interstate Commerce Commission and published in a book open to the inspection of shippers; plaintiff is presumed to have known the different rates for freight of different classes when carried at the railway company’s or the shipper’s risk, because the Interstate Commerce Commission had approved them.

All this is far-fetched, and to our minds still other presumptions are required to carry knowledge to the plaintiff of the rate charged by the defendant for the shipment in controversy. Plaintiff must be presumed to have known the goods were first-class freight according to the defendant’s classification for interstate business, and presumed also to have known the defendant would charge the tariff rate for first-class freight carried at the owner’s risk and no more; would observe its schedule. We grant that plaintiff is presumed to have known the contents of the hill of lading and is hound by them, there being no evidence of deception. Railroad v. Cleary, 77 Mo. 634; McFadden v. Railroad, and Kellerman v. Railroad, supra. We grant also that it has been decided a shipper is presumed to know the rates fixed and approved by the Interstate Commerce Commission and whether a rate named in a bill of lading, or agreed to verbally, is higher or lower than one published pursuant to the Interstate Commerce Act. Gerber v. Railroad, 63 Mo. App. 145; Wyrick v. Railroad, 74 Mo. App. 406. And if a bill of lading, without naming the rate, recites that it was a reduced one, proof may be made that that rate was less than the one charged for non-release contracts. Duvenick v. Railroad, 57 Mo. App. 550.

But that Avhen no rate is fixed verbally or in writing, and no allusion is made to a reduced rate, the shipper is presumed to have known a reduced one was charged because the printed receipt contained a clause limiting the carrier’s liability, has never been decided in this State, nor elsewhere to our knowledge. The argument for the defendant comes to this: It issued a bill of lading which was partly invalid unless it agreed to carry the shipment for less than was usually charged, and as it could lawfully issue only valid bills, the plaintiff must have known it did so agree, though the subject was never mentioned. The agent who gave the receipt was unable, while on the witness stand, to tell what the rate was except by comparing the waybill (with which the plaintiff had nothing to do) with the published tariff. The waybill contained a notation that the shipment was at the owner’s risk and the tariff showed the ordinary rate in such instances. This circumstance suggests that the restrictive clause in the printed receipt does not of itself denote, even to the minds of the defendant’s agents, what freight rate is charged for a shipment.

The plaintiff had an option to hold the defendant as an insurer or to release it for a consideration. As there was no rate agreed to, or collected, or even demanded from the plaintiff, the restrictive clause in the contract was a nullity and plaintiff was entitled to treat it as such. If a verbal consideration had been arranged the fact could have been shown, for the consideration of a contract may be proven by parol. Greer v. Nutt, 54 Mo. App. 4. But the evidence not only fails to prove a consideration was agreed to, but proves positively it was not. Hence, an essential element of any effective contract to release the defendant from its extraordinary responsibility is lacking and the alleged contract fails.

Certain decisions hold that in the absence of evidence to the contrary, it will be taken that the contract was in consideration of a reduced rate. York Co. v. Railroad, 3 Wall. 107; Belger v. Dinsmore, 51 N. Y. 166; McMillan v. Railroad, 16 Mich. 79; Sheague v. Railroad, 34 Has. 347; St. Louis, etc., Railway v. Lesser, 46 Ark. 236. In all those cases we believe, the facts showed or suggested a reduced rate. It was either named and could be seen to be less than published schedules, or was stated to be reduced; and that is unquestionably true of all the Missouri cases in which such contracts were upheld.

But it has been settled by adjudications that in this State no prima facie presumption of a consideration to support a, limited contract for carriage prevails. This point was directly raised and decided in Kellerman v. Railroad, supra. The opinion says:

“How, then, can it be said that the minds of the contracting parties met and without which there could be no contract in that regard. How could both parties have assented to the same term at the same time when that term was known to one of them and unknown to the other 1 How could the plaintiff be held to assent to a special or other rate which was unknown to him and not even specified in the contract? In such ease, it was a mental impossibility for the minds of the contracting parties to have met on the same subject-matter. The consideration, upon which the alleged special agreement was based, was an essential element that was absent, and therefore such agreement can not be upheld. Lawson on Contracts, sec. 6; Robison v. Estes, 51 Mo. App. 582. It has been ruled in this State that a special contract exonerating a carrier from liability for negligence, must be assented to by the shipper in order to be binding on him. Levering v. Union Trans. Co., 42 Mo. 88. . . .

“In some jurisdictions it is held that where there is shown an agreement to limit the liability of the carrier, it will be presumed in the absence of proof to the contrary that it was in consideration of a reduced compensation for the carriage; but in this State the rule is, a contract must be founded on a special agreement, to which the shipper assented, for a lower rate of freight than would be charged but for such special contract. Rogan v. Railroad, 51 Mo. App. 665; Conover v. Express Co., 40 Mo. App. 31.”

That case went to the Supreme Court on the dissent of one of the judges of the Kansas City Court of Appeals, and the Supreme Court likewise affirmed the judgment.

If there was prima facie a presumption of a consideration it would be overthrown in this case by the evidence ; which shows no rate high or low was stipulated, but merely that the defendant intended to charge a low one.

Another point made by the respondent is that inasmuch as the appellant company sued on the contract evidenced by the bill of lading, it practically admitted said bill was a valid contract and supported by a valid consideration and can not now be heard to assert the contrary. The contract is valid except as to its restrictive clauses and affords a basis for this action.

The result of the foregoing discussion is that the only matter to be investigated in this cause is the damage sustained by the plaintiff.

The judgment is reversed and the cause remanded.

Bland, P. J., and Beyburn, J., concur.