149 Mo. 311 | Mo. | 1899
Plaintiff recovered judgment against defendant for $1,000 as damages for negligently killing a jack belonging to plaintiff while said jack was being transported on defendant’s railroad; and defendant appealed.
This action was originally brought in the circuit court of Howard county, from which court it was transferred on change of venue to the circuit court of Randolph county. At the September term, 1894, of said court, judgment was rendered for plaintiff in the sum of $100. Whereupon plaintiff appealed to the Kansas City Court of Appeals, where the' judgment was reversed and the cause remanded for a new trial. The opinion of the appellate court is reported in 62 Mo. App. 1.
The petition alleged defendant to be a common carrier, and its incorporation, and that as such it undertook on the fifth day of April, 1892, to transport plaintiff’s jack from Armstrong to ITigbee at the usual tariff rate; that by defendant’s negligence the jack was maimed and killed, to his damage in the sum of $1,000, for which he asks judgment.
The answer admitted the incorporation of defendant; that it was a common carrier, and the shipment of the jack, but denied all other allegations in the petition. The answer further set up a special contract between J. B. Martin, the consignor of said jack, and defendant, and. alleged as contributory negligence that the animal was insecurely fastened
Plaintiff replied, denying the new matter contained in defendant’s answer, and averred that if Martin entered into the agreement alleged, such action on his part was without his knowledge or consent and beyond the authority of his agency; and further claimed a waiver by defendant of the requirement in the contract of shipment that written notice should be given within five days after such loss or damage, and that the actions and conduct of defendant were of such character as to estop defendant from setting up the failure to give written notice as a defense in bar of this action.
The record shows the value of the jack to have been $1,000; that early in March, 1892, plaintiff, who was a dealer in horses and jacks, had a sale at his farm near Moberly, Missouri, at which sale one I. B. Martin, who lives at Armstrong, Missouri, a station on the line of defendant’s railroad, purchased a young jack; that on the third day of April, 1892, Martin went to Moberly and there consummated a trade with plaintiff whereby he received an aged jack, giving in exchange therefor the young jack previously purchased of the
“Eighth. It is understood, and agreed that the stock shipped under this contract is transported at the above rates upon the representations of the second party that its value does not exceed one hundred dollars for each horse or mule, twenty dollars for each bull, cow or ox, and twenty dollars for each sheep, calf or hog; and that the first party shall not be liable for loss or damage to said stock in excess of these sums, nor for any sum in excess of their cash value at the time and place of shipment.
“Ninth. And it is further mutually agreed that should any loss or damage of any kind occur to the property specified in the contract, while said property is in the possession of the first party, the said second party shall, within five days after said loss or damage has occurred, give notice in writing of his claim therefor to the said first party. If the property is consigned to stock yards such notice shall be given to the live stock agent of the first party at said yards, or to the general freight agent, or nearest agent of the first party, and before the stock shall have been removed from said yards, or mingled with other stock. Tn all other cases the said second party shall give such notice to the general freight agent or nearest agent of. said first party, and unless
“And this agreement further witnesseth; that the second party has this day delivered to said first party in its cars at the above named station (Armstrong, Missouri), one head of jack, consigned to W. A. Eichardson, Moberly, Missouri,” etc.
Martin and the station agent had no conversation about the terms of shipment, and no statement was made by Martin as to the value of the jack, and the agent made no inquiry as to its value. When .the train which carried the jack reached Iligbee, defendant’s employees in charge of said train undertook to set the car containing the jack on a side track or Y by means of what is termed a “flying switch.” The evidence tends to show that said car was run in on said side track or Y at high speed; that because of some defect in the brake attached thereto the brakeman was unable to control the car, and jumped off. The car then collided with other cars stand* ing on the side track, with such force as to break a draw head and knock the standing cars back twenty feet. When the car containing the jack was opened it was found that the rope
I. The first ground of error urged by defendant for reversal is the failure of plaintiff to notify defendant of the injury according to the provisions of the contract of shipment. The rigid exactions of the common law which held common carriers liable as insurers and made them responsible ior any loss or damage to property taken by them for transportation, except when such loss or damage was caused by the act of God or the public enemy, have been so abrogated to
In the case at bar, the evidence shows that after the injury occurred the animal whose loss is sued for, was not taken to the place of destination where plaintiff might have had timely notice of its injury and would thus have been enabled to make out his claim within the five days specified in the contract, but was hauled by defendant company, without plaintiff’s knowledge or direction to a point beyond his
II. Counsel for defendant next assigns for error that under the ninth paragraph of the contract plaintiff is required to bring his action for damages within sixty days after the injury happened. This contention is in direct conflict with section 2394, Revised Statutes 1889, which is as follows: “All parts of any contract or agreement hereafter made or entered into which either directly or indirectly limit or tend to limit the time in which any suit or action may be instituted, shall be null and void.” Counsel maintains this section to be unconstitutional, but we find no merit in his position. The legislature has authority to adopt a uniform and genreal rule fixing the time within which actions of the same class may be brought, and to prohibit contracts abridging that right. The constitutionality of this section was recently before this coui;t in the case of Karnes v. Ins. Co., 144 Mo. loc. cit. 418, where it was said that: “The legislature, to prevent the unfair and unreasonable operation of such contracts, established as the policy of this State a uniform rule as to the time within which suits of the same class may
III. It is claimed that under the eighth paragraph of the contract no larger recovery than $100 can be had. In order to sustain this contention it would be necessary to give the word “horse” a larger meaning than its commonly, accepted interpretation would convey. This clause is a limitation of the common law liability respecting carriers, and while it is within the province of the carrier to contract with the shipper as to the amount of the recovery in case of loss or damage, yet in construing such an agreement the words used can not be given a broader meaning than that conveyed by commonly accepted usage. The terms of every written instrument are to be understood in their plain, ordinary and popular sense [Bishop on Contract, section 404]. In sections 410-411 of the same work, this author says: “Terms in a contract in derogation of law — that is, establishing for the particular instance a rule contrary to what the law woxdd provide — are, like pi’ovisions in a statute in derogation of the common law, construed strictly. Eor instance, it is so when a, common carrier undertakes to limit his liability by a special agreement with the party; he can claim nothing beyond what is plainly within the words.” Clearly in popular acceptation a jack is not a horse. One who goes to,.a liveryman and engages a horse to ride would not expect to have a jack brought
In our opinion the circuit court properly declared the law, and no error was committed in refusing the instructions asked by defendant and its judgment is therefore affirmed.