58 S.W. 28 (Mo. 1900), Ward v. Missouri Pacific Railway Company

Citation:58 S.W. 28, 158 Mo. 226
Opinion Judge:ROBINSON, J.
Party Name:WARD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
Attorney:Elijah Robinson and Lee B. Ewing for appellant. Edward J. Massie and Yeager & Strother for respondent.
Judge Panel:ROBINSON, J. Brace, P. J., and Valliant, J., concur; Marshall, J., concurs for the reasons expressed in the second, third and fourth paragraphs of the opinion.
Case Date:November 12, 1900
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 28

58 S.W. 28 (Mo. 1900)

158 Mo. 226

WARD

v.

MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

November 12, 1900

Appeal from Jackson Circuit Court. -- Hon. C. L. Hobson, Judge.

Affirmed.

Elijah Robinson and Lee B. Ewing for appellant.

(1) Defendant's demurrer to the evidence should have been sustained. The clause in the bill of lading requiring notice was not complied with and the court should have directed a verdict for the defendant. Rice v. Railroad, 63 Mo. 314; Harned v. Railroad, 51 Mo.App. 482; Sprague v. Railroad, 34 Kan. 347; Railroad v. Koch, 47 Kan. 753; Greenwood on Public Policy, rule 455, p. 517. (2) The court committed error in giving plaintiff's instructions numbered 2 and 3, and in refusing defendant's instructions numbered 4 and 5. The limitation valuation clause in the bill of lading, under which these goods were shipped, was valid and binding, and the court should have so instructed the jury. Express Co. v. Foley, 46 Kan. 457; Railroad v. Simpson, 30 Kan. 645; Harvey v. Railroad, 74 Mo. 538; McFadden v. Railroad, 92 Mo. 343; Squire v. Railroad, 98 Mass. 239; Graves v. Railroad, 137 Mass. 33; Hart v. Railroad, 112 U.S. 331; Duncan v. Railroad, 4th Inters. Com. Rep. 385; Inters. Com. Com. v. Railroad, 145 U.S. 263.

Edward J. Massie and Yeager & Strother for respondent.

(1) No notice in writing of the loss of the box sued for was required by the bill of lading. Wilson v. Railroad, 23 Mo.App. 50; Leonard v. Railroad, 54 Mo.App. 293. (2) Even if it be held that notice was required in the case at bar, still the notice given was sufficient. Rice v. Railroad, 63 Mo. 314; Hess v. Railroad, 40 Mo.App. 202; Harned v. Railroad, 51 Mo.App. 482; Richardson v. Railroad, 62 Mo.App. 1. (3) The evidence shows that as a matter of fact no reduced rate was given. The agreement fixing the value of goods in case of loss or damage was therefore without consideration, and void. McFadden v. Railroad, 92 Mo. 343; Kellermann v. Railroad (Mo.), 34 S.W. 41. (4) The shipment in question is interstate commerce and governed by the interstate commerce law and its amendments. Any reduction of freight rates would, therefore, have been illegal and void; and a contract based on an illegal consideration is void. 24 U. S. Stat. at Large, 379; Supplement to U. S. Rev. Stat. (2 Ed.), 529; 25 U. S. Stat. at Large, 855; Sup. to U. S. Rev. Stat. (2 Ed.), 684.

ROBINSON, J. Brace, P. J., and Valliant, J., concur; Marshall, J., concurs for the reasons expressed in the second, third and fourth paragraphs of the opinion.

OPINION

[158 Mo. 229] ROBINSON, J.

On September 18, 1895, the plaintiff shipped from Pittsburg, Kansas, to Kansas City, Mo., over the line of defendant's railroad, a lot of household furniture and three boxes of household goods and notions. One of these boxes plaintiff never received, and to recover the damages occasioned thereby this suit was begun. At the trial plaintiff recovered a judgment for $ 300, and defendant, after the usual preliminaries to that end, took the case on appeal to the Kansas City Court of Appeals. When the case came up for hearing in that court, it was ordered transferred to this, for the

Page 29

reason, as expressed in said order, "that said cause involves the construction of the Interstate Commerce Law, as appears by said respondent's instruction numbered 3, and the briefs of counsel."

Defendant filed an answer setting up a contract of shipment, wherein it was agreed between plaintiff and defendant that in consideration of reduced rate of freight, the valuation of said property shipped should not exceed the sum of five dollars per hundred pounds, and that if the same should be lost or destroyed while in transit or before delivery to the consignee, the defendant would be liable only for the sum of five dollars per hundred pounds. The answer further alleged that said property named in plaintiff's petition and therein charged to have been lost by defendant, did not weigh more than 200 pounds. It is further alleged, that by the terms of said contract of shipment the consignor of said property stipulated and agreed, "that all claims for damages growing out of the shipment and transportation of said property [158 Mo. 230] should be reported by the consignee in writing, to the delivering line within 36 hours after the consignee had been notified of the arrival of the freight at the place of delivery," and this plaintiff had failed to do.

Plaintiff by way of reply, stated that in the bill of lading sued on, there did appear a limitation valuation clause, but that notwithstanding that fact, "the tariff rate actually charged and collected by the defendant for said shipment was in truth and in fact according to the regular published schedule of rates and charges established by the defendant and in force at the time of said shipment, and that the rate so charged was not in fact any reduction from the regular schedule rate from Pittsburg, Kansas, to Kansas City, Mo., and that any rate defendant may purport to have which is greater or less than the schedule rate is unlawful and void, and in...

To continue reading

FREE SIGN UP