34 S.W. 41 (Mo. 1896), Kellerman v. Kansas City, St. Joseph and Council Bluffs Railroad Co.

Citation:34 S.W. 41, 136 Mo. 177
Opinion Judge:Burgess, J.
Party Name:Kellerman et al. v. Kansas City, St. Joseph and Council Bluffs Railroad Company, Appellant
Attorney:Spencer & Mosman and W. W. Ramsay for appellant. E. A. Vinsonhaler for respondent.
Judge Panel:Division Two: Burgess, J. Gantt, P. J., and Sherwood, J. concur. In Banc: Brace, C. J., Barclay, Gantt, and Macfarlane, JJ., concurring with Burgess, J.; Sherwood and Robinson, JJ., dissenting. Brace, C. J., Barclay, Gantt, and Macfarlane, JJ., concurring with Burgess, J., therein; Sherwood and R...
Case Date:February 04, 1896
Court:Supreme Court of Missouri
 
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34 S.W. 41 (Mo. 1896)

136 Mo. 177

Kellerman et al.

v.

Kansas City, St. Joseph and Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri, Second Division

February 4, 1896

Decision affirmed in 37 Mo. 828

Appeal from Nodaway Circuit Court. -- Hon. C. A. Anthony, Judge.

Affirmed.

Spencer & Mosman and W. W. Ramsay for appellant.

(1) Plaintiffs are bound by the contract they voluntarily entered into and can not recover more than the agreed valuation. Gwin v. Waggoner, 98 Mo. 315; O'Brien v. Kinney, 74 Mo. 137; Railroad v. Cleary, 77 Mo. 634; Campbell v. Van Houton, 44 Mo.App. 238; Snider v. Ex. Co., 63 Mo. 376; Brown v. Railroad, 18 Mo.App. 573; Rothschild v. Frensdorf, 21 Mo.App. 321. (2) The cases hold that in the absence of fraud or mistake the terms of a contract duly executed by the party, will be enforced even where they omit a material portion of the agreement actually entered into, and agreed upon, in the preliminary consultation between the parties. Morgan v. Porter, 103 Mo. 135; Christman v. Hodges, 75 Mo. 413; Snider v. Ex. Co., supra. (3) Contracts identical in every particular with the one at bar were sustained in Harvey v. Railroad, 74 Mo. 538; Hart v. Railroad, 112 U.S. 331. In England the consignor is bound by his declared valuation, and will not be permitted subsequently to show that the value of the goods exceeded the declared value. McCauce v. Railroad, 34 L. J. Exch. 39; Redman's Law of Railway Carriers [2 Ed.], p. 51; Edwards v. Sharatt, 1 East 604; Batson v. Donovan, 4 Barn. & Ald. 2; Tichburne v. White, 1 Strange, 145; Keeney v. Eggleston, Aleyn, 93; Tyly v. Morrice, Carth. 485; Harris v. Packwood, 3 Taunt. 264. There was an express agreement in the case at bar that the value of the bull was $ 50. This is not a case where the carrier by published notice, attempted to limit its liability to a certain sum in case of loss, but one where by a contract between the carrier and the shipper the value of the thing shipped was agreed upon, so that in case of loss, the damages became liquidated by the contract of the parties. It was specifically agreed that defendant should only be liable in case of loss to the extent of the value agreed upon between the parties. This was perfectly fair to both parties. The shipper could place any valuation on the bull over $ 50.

E. A. Vinsonhaler for respondent.

(1) There was no fraud or misrepresentation in the making of the contract. We contend that the tariff rate is not a reduced rate, but on the contrary it is the usual rate charged all shippers. McFadden v. Railroad, 92 Mo. 343. Not only must the rate be reduced in consideration of reduced valuation but the value must be fixed, so that, in case of liability on the part of the carrier the damages are liquidated. Here there was a general limitation on value only -- and in case of loss the shipper would still have to prove value. Doan v. Railroad, 38 Mo.App. 408; Conover v. Pacific Express Co., 40 Mo.App. 31; Rogan v. Railroad, 51 Mo.App. 665; Eells v. Railroad, 52 F. 903. (2) There was no error in showing who prepared the contract, nor in showing that nothing was said about value or rate. McFadden v. Railroad, 92 Mo. 343. (3) The evidence shows not only a case of negligence but one of reckless indifference and gross negligence. (4) The trial court's attention was directed entirely to the terms of the contract; counsel should not be permitted in the appellate court to change their theory of the case and enter upon the question of defendant's negligence, but should stand or fall within the lines they marked out in the trial court. Schlicker v. Gordon, 19 Mo.App. 479. (5) Heat was agreed to be the cause of the bull's death. Counsel now attempt to bring the cause within the exception set out in their printed contract, but this exception is based upon the consideration of free transportation of persons who should have charge of the stock. In our contract this consideration was stricken out and such exception is not in the case. And even if it was, it would not relieve the defendant from liability for its negligence. Sturgeon v. Railroad, 65 Mo. 569; McFadden v. Railroad, 92 Mo. 343. (6) The evidence was enough to show negligence. Ball v. Railroad, 83 Mo. 574; Witting v. Railroad, 101 Mo. 651. The negligence was gross and wanton and in such case it is against public policy to permit a limitation of the liability. Railroad v. Thomas, 3 S. Rep. 802. (7) The contract is unreasonable.

Division Two: Burgess, J. Gantt, P. J., and Sherwood, J. concur. In Banc: Brace, C. J., Barclay, Gantt, and Macfarlane, JJ., concurring with Burgess, J.; Sherwood and Robinson, JJ., dissenting.

OPINION

[136 Mo. 180] In Banc.

Burgess, J.

Plaintiffs who were partners at the time of entering into the contract out of which this controversy arose, brought this suit against defendant to recover damages from it, as a common carrier, for the breach of a contract to transport from Maryville, Missouri, to Kansas City, Missouri, one bull.

In the circuit court plaintiffs recovered judgment from which said judgment defendant appealed to the Kansas City court of appeals, where the judgment was affirmed, but on dissent by one of the members of that [136 Mo. 181] court the cause was certified to this court on the ground that the opinion of the court of appeals is in conflict with the decision of the supreme court.

The petition alleges that the value of the bull was $ 250, which defendant agreed, in consideration of the regular tariff rate per car to be paid to it by plaintiffs, to transport from Maryville to Kansas City, Missouri; that defendant never carried the bull to the place of destination nor was said bull ever delivered to plaintiffs, but had been wholly lost to them through the negligence of defendant.

Defendant answered denying that it had neglected to perform its duty as a common carrier in the transportation of the bull, and alleged that while transporting it with due care it died in the car while in transit, and for that reason was not delivered at the place of destination.

The answer further alleged that the animal was shipped under a special contract by which it was expressly agreed between plaintiffs and defendant that in case of loss of the bull its value should not exceed $ 50, whether such loss resulted from accident or

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negligence on the part of defendant, and that defendant did not assume a liability to exceed that sum.

By replication plaintiffs admitted that their agent signed a contract for shipment prepared by the agent of defendant, but plaintiffs state that such contract was prepared without any suggestion, statement, or word from them or their agent as to the value of said bull; that defendant did not enquire as to the value nor did plaintiffs fix it; that no agreement was made as to the rate based upon reduction; that the rate of freight was not fixed, but the same was to be fixed at destination.

The bull was transported under a bill of lading issued by defendant to plaintiffs, and signed by their...

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