74 Mo. App. 406 | Mo. Ct. App. | 1898
— This was an action ex delicto brought by plaintiff against defendant for a breach of the duties imposed upon it as a common carrier by the common
“Further answering, the defendant says that it had two rates for the shipment of live stock; that it had prepared, published and filed with the interstate commerce commission its tariff sheets, which were recognized as valid and reasonable by said commission; that defendant had fixed, and in its said tariff sheets had published, a rate which was called the regular rate, or the rate at carrier’s risk, which was at the sum and amount of ninety-four dollars ($94), per standard car for the shipment of property of the kind referred to in the petition from the station of Green Ridge,, in Pettis county, Missouri, to Yinita, in the Indian Territory; that this rate for shipment at the carrier’s risk, referred to and spoken of, as the regular rate, was the usual and customary rate that was charged in all cases where the shipment was made at the risk of defendant as the carrier, and was the rate at which the defendant, as a common carrier, could be required to accept and transport freight of that kind offered to it to be transported under the ordinary common law duties and liabilities of a carrier. But the defendant further says that in said tariff sheets so prepared, published and filed as aforesaid there was another rate of forty-seven dollars ($47) per standard car between the above named points, or one half of the regular rate when shipped at the carrier’s risk, which was known as the tariff rate for shipments at owner’s risk of property of the kind mentioned in the petition, and which such reduced tariff rate was given as a consideration for fixing .the
“Further answering, the defendant says that on or about the third day of April, 1895, the plaintiff represented that he desired to ship four mules over the defendant’s railway from Green Ridge, in Pettis county, Missouri, to Vinita, in the Indian Territory, and he thereupon elected to have the same shipped at the lesser of reduced rate at the owner’s risk, and upon a fixed valuation upon the animals shipped; that the rate charged for the said shipment was the said lesser rate of forty-seven dollars ($47) per standard car. And thereupon the plaintiff and the defendant, acting through its agent, entered into a written contract for the shipment of said animals from Green Ridge, Missouri, to Vinita, in the Indian Territory, at said reduced and special tariff of forty-seven ($47) and, in consideration of the defendant agreeing to. carry said animals at the rate of said reduced or special tariff, it was expressly stipulated and agreed in said contract as follows: * * * In consideration of said special agreement by the carrier it is further mutally agreed and stipulated as follows: * * * 8. The carrier does not ship cattle * * * under this contract or at the rate herein given which exceed in value the following prices per head: Each pony * ’ * * or
The answer contained a further allegation to the effect that the contract from which we have just quoted was duly signed by plaintiff and defendant and that if plaintiff suffered any loss on account of said shipment his damages were limited' to $100 for each of the said four jacks so shipped, etc. The receipt and failure to deliver the plaintiff’s jacks were, in effect, admitted by the answer.
The replication alleges that after plaintiff’s jacks were loaded on defendant’s car, and as the train was about to leave, the defendant’s agent produced the said specially pleaded contract and requested the plaintiff to sign the same at a time when he had no opportunity to read its numerous intricate provisions of which he was wholly unaware, and that he did not intentionally or willingly agree to the same, though he admitted that he signed the same. There was a general denial of all the other allegations of the answer.
There was a trial and at the conclusion of the evidence adduced the court gave an instruction in the nature of a demurrer which declared that the plaintiff could not recover more than $100 per head for the jacks shipped. There was judgment accordingly for plaintiff from which he appealed.
The contract which was put in evidence recites that: “This company has two rates on live stock. Ordinary live stock transported under this special contract is accepted and hauled at rate named below at owner’s risk as per conditions herein set forth, with the distinct understanding that said rate is a special rate which is
It is thus seen that we have the joint recital of the parties to the contract of the fact that the defendant had two rates which it published upon its tariffs — the one the tariff rate for shipments at the carrier’s risk which was the higher rate and made the defendant liable for the full value of the property lost, and the other, the reduced or lower rate, applying only to shipments made under special contracts in which there was a limitation on the value.
The recitals in the contract prima facie established that the plaintiff shipped his animals in consideration of a special or reduced rate. And since these recitals
If the plaintiff did not know the contents of the contract, and if the time intervening between the loading of the jacks on the car and the starting of the train was so short as not to afford plaintiff a reasonable opportunity to read the same and acquaint himself with its contents he should have objected and refused to then sign it. But if instead of taking this course he elected to sign it he can not be permitted to evade its terms on the ground that he did not know its contents. He must suffer the consequences of his own folly and imprudence.
There are several other assignments of error called to our attention in the brief of counsel but these we find on examination can not be sustained.
It is our conclusion that the action of the court in giving the defendant’s instruction was not error, and it results that the judgment will be affirmed.