127 S.W. 925 (Mo.App. 1910), Robert v. Chicago & Alton Railway Company

• Citation: 127 S.W. 925,148 Mo.App. 96
• Date: 19 April 1910
• Docket Number: .
• Parties: DENT H. ROBERT, Respondent, v. CHICAGO & ALTON RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

age 925

127 S.W. 925 (Mo.App. 1910)

148 Mo.App. 96

DENT H. ROBERT, Respondent,

v.

CHICAGO & ALTON RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 19, 1910

Appeal from St. Louis City Circuit Court.--Hon. Wm. M. Kinsey, Judge.

AFFIRMED.

Judgment affirmed.

Johnson, Rule & Allen for appellant.

(1) The law of the State where the contract was made governs even though the contract is to be performed in another State. Otis Co. v. Railroad, 112 Mo. 662; Reed v. Tel. Co., 135 Mo. 661; Hartmann v. Railroad, 39 Mo.App. 88; Crouch v. Railroad, 42 Mo.App. 248; Nenno v. Railroad, 105 Mo.App. 540; Townsend and N. D. G. Co. v. Express Co., 133 Mo.App. 683. (2) Under the law of California the contract entered into by plaintiff and defendant agreeing to a limitation of the carriers' liability to $ 100 in case of loss of his trunk, was valid and enforceable. Sec. 2176, Civil Code of Cal.; Deposition of Henry E. Monroe, abst., p. 31. (3) Plaintiff must be presumed to have had actual knowledge of the contents of the contract which he signed. Merrill v. Transfer Co., 131 Cal. 582.

Matthew P. O'Reilly for respondent.

(1) The law of the State where the contract is to be performed governs. Machinery Co. v. Ramlose, 210 Mo. 631. (2) (a) Even under the law of California the contract limiting the liability of a carrier must be a special one and supported by a special consideration. Sec. 2174, Civil Code Cal. (b) Such is the common law. George v. Railroad, 214 Mo. 551; Ward v. Railroad, 158 Mo. 234; Creel v. Railroad, 137 Mo.App. 27; Ficklin v. Railroad, 117 Mo.App. 221; Phoenix P. Co. v. Railroad, 101 Mo.App. 442; Paddock v. Railroad, 60 Mo.App. 328; Conover v. Express Co., 40 Mo.App. 31; Milling Co. v. Railroad, 127 Mo.App. 80. (3) (a) Even under the law of California a carrier cannot contract to limit his liability so as to exempt it for losses caused by its negligence. Sec. 2175, Civil Code Cal.; Merrill v. Transfer Co., 131 Cal. 582; Michalitschke v. Wells Fargo, 118 Cal. 683. (b) And such is the common law. Witting v. Railroad, 101 Mo. 634; Anderson v. Railroad, 93 Mo.App. 677; Conover v. Express Co., 40 Mo.App. 31. (4) It was gross negligence for the defendant to deliver the trunk to any one else than the Santa Fe. Lin v. Railroad, 10 Mo.App. 125; 4 Elliott, Railroads, 2248; Railroad v. Nicolai, 4 Ind.App. 119; Merrill v. Transfer Co., 131 Cal. 582; Railroad v. Cole, 68 Ga. 623; Johnson v. Railroad, 33 N.Y. 610; Robertson v. Merchants Co., 45 Ia. 470; Hinckley v. Railroad, 56 N.Y. 429; Railroad v. Allison, 59 Tex. 193; Independence Co. v. Railroad, 72 Ia. 535; Campian v. Railroad, 43 F. 775; Duncet v. Wade, 3 Ill. 285; Levi v. Railroad, 35 La. Ann. 615; Merrick v. Webster, 3 Mich. 268; Brown v. Railroad, 63 Minn. 564. (5) A carrier may not violate the contract and at the same time claim the benefit of the contract. 4 Elliott on Railroads, 2248; Hostetter v. Park, 137 U.S. 30; Estes v. Railroad, 7 N.Y.S. 863. (6) Jewelry is baggage when carried for personal use or adornment on the trip or at the destination. Article by Mr. Lawson, 38 C. L. J. 5-6; Macrow v. Railroad, L. R., 6 Q. B. 612; Railroad v. Fraloff, 100 U.S. 24; Mauritz v. Railroad, 23 F. 765; Pettigrew v. Barnum, 11 Md. 434; Coward v. Railroad, 16 Lea 225; Railroad v. Carrow, 73 Ill. 348; McGill v. Roannd, 3 Pa. St. 451; Torpey v. Williams, 3 Daley 162; Brooks v. Pickwick, 4 Bing. 218; Keith v. Railroad, 2 Ohio Dec. 125; Merrell v. Grenell, 30 N.Y. 594; Jones v. Vorhees, 10 O. 145; McCormick v. Railroad, 4 Ed. Smith (N. Y.) 181; Contract Co. v. Cross, 8 Bush. 422; Railroad v. Hammond, 33 Ind. 379; Bruty v. Railroad, 32 Up. Can. (Q. B.) 66.

OPINION

Page 926

[148 Mo.App. 101] GOODE, J.

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

Page 927

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. [148 Mo.App. 102] Plaintiff's trunk was checked and routed by the transfer company as agent of defendant, and this is not disputed. The check number on plaintiff's trunk was 142,736, as shown by papers taken from the files of the Terminal Railway Association of St. Louis, which contained a list of the items of baggage turned over to said association by the transfer company on October 15th. The check had printed on it a provision that "agents and baggagemen must enter on checks the name of issuing line, form number, complete route and junction points of ticket on which check was issued." It was the course of business of the transfer company to check baggage at residences and hotels, haul it to the union station and there turn it over to the Terminal Railway Association. The list of items aforesaid taken from the files of the Terminal Association contained, among others, this item referring to plaintiff's baggage:

"Destination.	Route.	Through	Claim	Street	Amount to
		Check	Check	& No.	Collect.
		Nos.	Nos.
San Francisco	C. & A.	142736		3224 Wash. A."

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 Railroad, and according to the course of business it was the duty of the Terminal Railroad 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 [148 Mo.App. 103] plaintiff's ticket which had been turned over to said St. Louis Transfer Company, and purported to be issued by the Atchison, Topeka & Santa Fe Company for a trip between San Francisco and St. Louis and return, as heretofore stated. Plaintiff testified the part of the check issued to him, there being a part fastened to the trunk, showed the trunk was routed over the Atchison, Topeka & Santa Fe Railroad from Kansas City. When the trunk reached Kansas City, as it did in safety, instead of being turned over to the Atchison, Topeka & Santa Fe Company, it was placed on Union Pacific train No. 3, which train was bound for Denver, and the trunk was routed out of Denver on the Denver & Rio Grande railroad. It was afterward put on a train of the Southern Pacific Railroad Company and was burned in a wreck on that railroad at Yuba Pass. This action is to recover the value of the trunk and its contents, the total value being laid at $ 1137.33. The contents are itemized and consist, besides suits of men's clothing, vests, hats, shoes, neckties, underwear, shirts, cuffs and collars, of the following articles which defendant asserts were not baggage:

"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 dia-
mond 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 [148 Mo.App. 104] damaged in the sum aforesaid. The eighth paragraph of the ticket reads: "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...