Stubblefield v. St. Louis & San Francisco Railroad

194 Mo. App. 396 | Mo. Ct. App. | 1916

NORTONI, J.

This is a suit-for damages accrued to plaintiff on account of the negligence of defendant-common carrier. Plaintiff recovered and defendant prosecutes the appeal.

It appears 'that plaintiff shipped a valuable race horse from Ft. Wayne, Indiana, to Oran, Missouri, over the Wabash railroad and subsequent connecting carriers. The evidence tends to prove that the horse was injured through defendant’s negligence during the transportation over its road, so as to occasion his death. In his petition, plaintiff valued the horse at $7000, and prayed judgment -for this amount. The jury awarded a recovery of $3500.

The answer incorporates a general denial, and then pleads a special contract entered into between plaintiff, by his agent Rash, on his part, and the Wabash Railroad Company, for the transportation of the horse from Ft. Wayne, Indiana, to Oran, Missouri. Among other things, the answer pleads that the Wabash Railroad Company had prepared and promulgated two different rates of freight in respect of such shipments, one with full common-law liability attached, and a lesser, or reduced, rate based on a valuation declared by the shipper; that, on receiving the shipment, plaintiff, through his agent, Rash, entered into a written contract with it, whereby he chose the lesser of the two rates, and declared the valuation of the horse to be $100, at which amount the right of recovery for its loss is limited in consideration of such reduced rate of freight.

By his reply, plaintiff denied that any reduced rate of freight was accorded him in the shipment.

The writte'n contract of affreightment is in evidence, and it is admitted that it was executed by plaintiff’s agent, Rash. It appears too from the tariffs in evidence, duly authenticated by the proper officer of the Interstate Commerce Commission, that the Wabash Railroad Company had established and promulgated and filed with the commission its rates of freight available to all persons for transportation in this character of shipments. One rate — that is, the higher rate — provided for the full common-law liability of the carrier, while -the lesser rate reckons with the valuation declared by the shipper at the time of the shipment, and limits the valuation accordingly. It is clear that the shipment was made at the lesser of the two rates above mentioned, but notwithstanding the valuation of $100 declared on the horse in connection therewith, and the limitation in the contract to the right of recovery to that amount, the jury awarded plaintiff a recovery of $3500.

It is argued that this was error, because the shipment was interstate in character, and, in such circumstances, it is certain plaintiff may not recover an amount greater than that limited in the contract of shipment, for that the valuation and the limited amount of recovery is indissolubly bound up in the rate paid. Congress having manifested its purpose, through the enactment of the Interstate .Commerce Act, to. take possession of the subject of the liability of carriers by railroad on account of interstate shipments, as appears by reference to the Interstate Commerce Act and its amendments, including that of June 29, 1906 (34 U. S. Stat. at Large, 584), and especially bills of lading and shipping contracts, through what is known as the Carmack Amendment, incorporated in section 20 of the Act, page 595, such legislation and the decisions of the Supreme Court of the United States expounding it supersede all State regulations and rules of decision on the subject. The Federal statute touching this matter and the decisions of the Supreme Court of the United-States construing them afford an exclusive rule for the determination of the controversies pertaining to the subject. This is true, too, notwithstanding the provisions of the Carmack Amendment to the effect that the enactment shall not deprive any holder of a bill of lading of any remedy or right of action that he had under the existing law, for this is construed to refer alone to existing Federal law. [See Adams Express Co. v. Croninger, 226 U. S. 491; Chicago, etc. Ry. v. Miller, 226 U. S. 513; Chicago, etc. Ry. Co. v. Latta, 226 U. S. 519; American Silver Mfg. Co. v. Wabash R. Co., 174 Mo. App. 184, 192, 156 S. W. 830.] There can be no doubt that, under the rule of decision evolved in the Supreme Court of the United States with respect to interstate shipments, the right respecting the amount and value of the recovery in cases of this character is to be ascertained and determined by reference to the rate at which the shipment is made. [Authorities supra.]

But it is argued on the part of plaintiff that the Interstate Commerce Law was not invoked here and, therefore, the case is 'to be' disposed of without regard to it. The argument proceeds in the view that it is necessary for deféndant to specially plead the Interstate Commerce Statute in its answer, but obviously such is not true, for if the shipment be interstate in character, then the Interstate Commerce Statutes displace all local law on the subject and afford the sole rule of decision. Although it is essential to plead in the answer the statutes of a foreign State, in order to invoke the rule they reflect, such is not true in respect of the laws of the United States touching the subject-matter- of Interstate Commerce. The precise question has been pointedly .determined by our Supreme Court, as will appear by reference to Wentz v. Chicago B. & Q. R. Co., 259 Mo. 450, 463, 464, 168 S. W. 1166.

In its answer defendant set forth the facts concerning the special contract of shipment, showing that two rates of freight were provided, and that plaintiff, through his agent, chose the lesser, to which was annexed the valuation of $100 on the horse declared and stipulated therein. The evidence is, that such was and is the contract under which the shipment was made. It expressly provides that the recovery shall not exceed $100. At the instance of plaintiff the court instructed as follows:

“Upon the question of the fixed valuation of the horse as stated in the contract offered by defendant, you are instructed that before the defendant can maintain the defense of limiting its liability to the sum of one hundred dollars, if liable at all, the jiiry must find that the plaintiff was in fact granted a rate less than that granted to all others for a like service between like points, and that plaintiff’s agent knowingly accepted such reduced rate and signed the contract of shipment knowing that it was a reduced rate, and that he had a choice between the contract signed and another at a higher rate in which the horse’s value would not be limited, and unless you find this choice was given him at the time he signed' the contract then plaintiff would not be bound by it, and you are not limited in fixing the value of the horse at one hundred dollars, but you may fix Ms value at such sum as from all the evidence in the case yon believe he was reasonably worth.”

This instruction is erroneous, in- that it 'informed the jury that, in order for defendant to maintain its defense under the special contract, it must appear “that the plaintiff was in fact-granted a rate less than that granted to all others for a like service between like points.” Such is violative of the principle reflected throughout the Interstate Commerce provisions, for that it is designed that the same rates shall be afforded to one and all alike. It is permissible to provide two rates, one with full common-law liability attached, and a lesser rate based on a valuation declared or agreed upon, provided such rates are available to one and all, as is the ease here. [See sections 2 and 3 of the Act of February 4, 1887, 24 Stat. at Large, 379.]

There is no evidence that plaintiff was granted a rate less than that granted to all others for like services, but, on the contrary, the evidence is, the rate was open to one and all desiring .to ship under such contract on such declared valuation. The instruction as worded is misleading and inheres, with error touching this. A rate such as that contemplated in the instruction would be discriminative and of no avail whatever.

There is no evidence of -fraud or deceit practiced on plaintiff’s agent in negotiating the contract and, of course, plaintiff is concluded thereby, for the law devolved the -duty upon his agent, who, it appears, was familiar with such transactions, to read it and ascertain its contents before affixing his signature thereto. [See O’Bryan v. Kinney, 74 Mo. 125; Mires v. St. Louis S. F. R. Co., 134 Mo. App. 379, 114 S. W. 1052.]

Plaintiff’s instruction No. 2 above copied is, therefore, further erroneous, hg that it submitted to the jury as to whether plaintiff’s agent knowingly accepted such reduced rate and signed the contract of shipment knowing that it was a reduced rate, for that, in the absence of fraud, deceit or mistake, of which there is no evidence, he. is bound by its provisions.

Plaintiff’s instruction No. 5 is as follows:

“The court instructs the jury in this cause that although you may find and believe from the evidence that William Rash signed the contract offered by defendant and purporting to be signed by said Rash and that he knew that it specified a reduced rate, yet the recital in the contract that the rate charged was a reduced rate is not evidence of that fact and it devolves on the defendant to prove to your satisfaction that there was another and different legal rate in existence which it was permitted to charge plaintiff, and unless it has shown that there was such another rate your verdict will be for the plaintiff in such sum as you believe from‘all the evidence the horse was reasonably worth, if you find the horse was injured as heretofore instructed on defendant’s railroad.”

This instruction is erroneous, in that it directs the jury that, although plaintiff’s agent signed the contract and knew that it specified a reduced rate, yet the recital in the contract that the rate was a reduced one is no evidence of that fact and that it devolved further on defendant to show such to be the fact. It has been declared in numerous cases that the recital of a reduced rate in the contract alone is prima-facie evidence of such fact. [See Mires v. St. Louis & S. F. R. Co., 134 Mo. App. 379, 114 S. W. 1052; McFadden v. Mo. Pac. R. Co., 92 Mo. 343, 4 S. W. 689.] The evidence is, that plaintiff’s agent was fully informed concerning the rate at the time he entered into the contract of shipment and that he was familiar with such transaction, • as he frequently shipped horses for plaintiff. Moreover, plaintiff’s agent does not controvert this testimony, but says only that he does not recall the fact.

The judgment should be reversed and the cause remanded with directions to enter judgment for plaintiff for $100, the value agreed upon in the shipping contract. It is so ordered.

Allen, J., concurs, Reynolds, P. J., absent.