148 Mo. App. 96 | Mo. Ct. App. | 1910
This plaintiff, a resident of San Francisco, California, purchased in that city from the Atchison, Topeka & Santa Fe Railroad Company, on September 10, 1904, a railroad ticket good for passage from there to St. Louis, Missouri, and return, over said railroad company’s line between San Francisco and Kansas City, and over the Chicago & Alton railroad between Kansas City and St. Louis. He testified there was no attempt made when he bought the ticket to conceal from him any of the printed conditions. He reached St. Louis where he sojourned about six weeks and then started on his return trip, October 16th, having first had his ticket validated according to its terms at the Chicago & Alton Railroad Company’s office in St. Louis. Plaintiff then took the ticket to the office of the St. Louis Transfer Company, a corporation engaged in hauling baggage from houses in St. Louis to the union station. The purpose of plaintiff was to have the transfer company check his trunk at the residence where he was stopping, through to San Francisco. He gave the company the railroad ticket and fifty cents to pay the charge for transferring baggage to the union station, the company sent a baggage wagon to the house where plaintiff was stopping, checked the trunk there and gave him a duplicate check. The evidence proves the transfer company gets the checks used by it from the railway companies running into St. Louis, including defendant, and issues the checks in accordance with the routing of the tickets held by the owners of baggage.
That notation meant the said railroad association had received a piece of baggage from the St. Louis Transfer Company, checked to San Francisco, that the check number was 142,736, and the letters “C. & A.” indicated the routing; that is, the trunk was to go over the Chicago & Alton Eailroad, and according to the course of business it was the duty of the Terminal Eailroad Association to deliver the trunk to the Chicago & Alton Company. It should be remembered this trunk was checked by the St. Louis Transfer Company upon
“One gold match box with 1 1-2 carat diamond setting.............................$260.00
One pink pearl in diamond setting.......... 150.00
One brown onyx ring with initial “R”...... 14.00
One scarf pin of gold, a crab holding small diamond in claws ...................... 38.00
One silver cross .......................... 2.00
One silver watch charm .................. 6.00
One pr. gold cuff buttons with diamonds.... 45.00
One plain gold match box.................. 20.00”
The petition charges in substance the delivery of the trunk and contents to the Chicago & Alton Railroad Company in St. Louis, the duty of said company to carry it safely and deliver to plaintiff at San Francisco ; that in disregard of its duty as a common carrier, defendant had failed to do this, whereby plaintiff was
“The purchaser agrees that the value of baggage offered for carriage does not exceed $100; and in case of loss of, or damage to, the same from any cause, the carrier shall not be liable for a greater amount.”
“I hereby agree to all conditions of the above contract.
“(Signed) Dent H. Robert, Passenger.”
It will be perceived plaintiff subscribed his name, below said paragraph of the ticket. He testified he was hurrying to St. Louis on account of illness in the family and so he asked for a round trip ticket on the train known as the California Limited, requesting the agent to sell him a ticket over the lines of railway companies which made the quickest trip between San Francisco and St.(Louis, stating his reason; the ticket was given him to sign and he signed it; he did not remember whether he asked the price of it; the man in charge of the office handed him pen and ink and the ticket and indicated or told him Avhere to sign it. Plaintiff made this further statement: “I signed it because I could not purchase it otherwise.” The Assistant General Passenger Agent at San Francisco of the Atchison, Topeka & Santa Fe Railroad Company, on September 10, 1904, Avhen the ticket was purchased, testified $102 was paid for it, which Avas the fare from San Francisco to St. Louis and return, over the road of said company to Kansas City and thence over the Chicago & Alton Railroad to St. Louis, the one way fare was $67.50, the reduction being made on account of the purchase of a round trip ticket. This witness said it was customary for the Santa Fe Company to give a reduction for an excursion or round trip ticket; that on the California Limited only first-class tickets were accepted; the one sold to plaintiff was not the only ticket accepted on that train, hut any ticket marked “first-class” was ac
“Section 2176. Effect of written contract. — A passenger, consignor or consignee, by accepting a ticket, bill of lading or written contract for carriage, with a knowledge of its terms, assents to the rate of hire, the time, place and manner of delivery therein stated, and also the limitation stated therein upon the amount of the carrier’s liability in case property carried in packages, trunks or boxes, is lost or injured, when the value of such property is not named; and also to the limitation stated therein to the carrier’s liability for loss or injury to live animals carried. But Ms assent to any other modification of the carrier’s obligations contained in such instrument can be manifested only by his signature to the same.”
Defendant put in also the testimony of an attorney in San Francisco, which was, in effect, that paragraph eight of the ticket, limiting the amount to be recovered for loss of baggage, was enforceable in California “as a fair, just and reasonable provision. In rebuttal, plaintiff offered the following sections from the Civil Code of California:
“Section 2174. Obligation of Carrier Altered Only by Agreement. — The obligation of a common carrier cannot be limited by general notice on his part, but may be limited by special contract. En. March 18, 1872. Am’d 1873-4, 249.
“Section 2175. Certain Agreements Void. A common carrier cannot be exonerated by any agreement made in anticipation thereof from liability for the gross negligence, fraud, or wilful wrong of himself or his servants. En. March 21, 1872.”
Plaintiff also put in evidence the opinions of the Supreme Court of California in Michalitschke v. Wells Fargo Ex. Co., 118 Calif. 688 and Merrill v. Pac. Transfer Co., 131 Calif. 582. Tw'o of the main instructions
“If the jury believe from the evidence that the defendant, Atchison, Topeka & Santa Fe Railway Company, would not sell to the plaintiff a ticket from San Francisco, California, to St. Louis, Missouri, and return, unless he signed the ticket and required the plaintiff to sign the same before it would sell it to him, and that said ticket was the highest priced ticket sold to the public between the cities named, and return, then by signing the said ticket the plaintiff did not assent to its terms and all stipulations limiting the liability of the railroad company as to the value of the baggage therein, are void.”
The main instruction granted at defendant’s request declared, in effect, if defendant safely transported the trunk and contents from St. Louis to Kansas City and there safely delivered the same to the connecting carrier named in the ticket, or said carrier’s agent, and the trunk was not lost, damaged or destroyed while under its control, the verdict must be for defendant. The issue of wrhether defendant delivered the trunk to
The question for first solution is what law should control our decision, plaintiff contending we should follow the law of Missouri as the place of performance contemplated by the parties, whereas defendant insists the law of California where the contract was made, should govern. The contract of carriage was to be performed in part in Missouri, but also in California and the states between those two through which plaintiff would travel in going from San Francisco to St. Louis and return. It must be remembered plaintiff was a citizen of California and had started with his baggage on the return trip from St. Louis to San Francisco; further, the gravamen of the petition is that he had tendered said ticket to defendant, the latter had accepted plaintiff’s baggage pursuant to the contract (i. e. the ticket) and it became the duty of defendant to carry the baggage from St. Louis to San Francisco and there deliver the same to plaintiff; but in violation of its duty, defendant had failed to deliver the baggage to plaintiff, though often requested to do so. As the case is thus stated, the place of complete performance of the contract between the parties, was the place where the trunk was to be "delivered by defendant to plaintiff, or San Francisco; and having regard to all the facts, it is impossible to hold Missouri was contemplated by the parties, including the Santa Fe Company which sold the ticket, as the place where the contract was to be performed. But if it was, the great weight of authority favors the rule that such a contract is governed by the law of the place where it was made; a rule which has been declared in several decisions of the appellate tribunals of this State. [Otis v. Railroad, 112 Mo. 622, 20 S. W. 676; Goldsmith v. Railroad, 12 Mo. App. 479; Townsend, etc.,
The next inquiry is whether the law of California is in accord with our law on the subject; an inquiry to be answered from sections 2174, 2175 and 2176 of the Civil Code of California and the decisions of its Supreme Court expounding them, so far as this has been done. Said sections relate to the same subject-matter and should be construed together, in fact, have been by the Supreme Court of the State. [Michalitschke v. Express Co., supra.] Regarded with reference to the "case in hand, section 2176 says a passenger who accepts a ticket for carriage wi Lli knoAvledge of its terms, assents “to the limitation stated therein upon the amount of •the carrier’s liability in case property carried in packages, trunks and boxes' is lost or injured, when the value of such property is not named.” It will be perceived the statutes of California authorize agreements limiting liability for damage to property in transit caused
Turning now to the facts of the present controversy in order to determine their effect under the law as we have ascertained it, we observe that it is to be borne in mind no consideration for the stipulation as to the value of plaintiff’s baggage, other than a reduced fare, was contended for by defendant, and whether a lower fare was charged was an issue on which both parties introduced evidence instead of invoking a presumption. The defendant now insists the evidence established its contention, as it proved the price of a round-trip ticket was less than the sum of the prices of a going and return ticket. We deem this position untenable. The Interstate Commerce Act required the two railway companies plaintiff dealt with to prescribe schedules of regular rates for the different services they stood ready to render. [Act, section 6.] Defendant not only failed to prove those companies had fixed a rate for an unlimited ticket or offered such for sale; but in our judgment the contrary was conclusively shown and defendant cannot be heard to claim, in the face of the evidence on the issue, that the fare charged plaintiff was reduced, on the theory that he would have been sold an unrestricted ticket at a higher price liad he demanded one. A “reduced rate” must be one fixed lower than another rate which is offered to the public; and that no higher rate was pre
In the third instruction granted at plaintiff’s request, the jury were advised that plaintiff did not assent to the restrictive stipulation in his ticket if it was the highest priced ticket sold to the public between San Francisco and St. Louis and return, and if the jury found from the evidence the Atchison, Topeka & 'Santa Fe Company would not sell plaintiff the ticket unless he signed it. The theory of this instruction doubtless was that by requiring plaintiff to sign the ticket before it would be issued to him, he was, perhaps, laid under compulsion to assent to the conditions of the ticket and this compulsion rendered the stipulation null. As said supra, though carriers are allowed to restrict their lia
The instructions as to what constitute baggage are approved. [Hubbard v. Railroad.] Those instructions are not challenged by defendant, but it is said the evidence of plaintiff’s social position was insufficient to warrant a finding that the jewelry lost by him was such as a man in his position might carry as baggage. . This assignment is without merit, we think.
The judgment is affirmed.