Snider v. Adams Express Co.

• Decision Date: 31 October 1876
• Citation: 63 Mo. 376
• Parties: HENRY G. SNIDER, Respondent, v. THE ADAMS EXPRESS COMPANY, Appellant.
• Court: Missouri Supreme Court

63 Mo. 376

HENRY G. SNIDER, Respondent,

v.THE ADAMS EXPRESS COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Vernon Circuit Court.

James B. Gantt, for Appellant.

I. There were no underwritten limitations in the contract. They were in the body, and “the legal presumption is, that stipulations limiting common law liabilities contained in a receipt given an express company, were known by the party receiving it.” (Belgen vs. Dinsmore, 51 N. Y. 166.) And in this case he had his counsel with him. Hence it was not necessary for defendant to show it called plaintiff's attention to the terms of the written contract.

II. The court erred in giving the instruction for plaintiff, which tells the jury, that if the defendant's agent at Nevada did not call plaintiff's attention to the underwritten limitations in the receipt, and that the package was received by the consignee in good order, containing less money then when delivered, then the jury will find for plaintiff.

1st. There were no underwritten limitations of responsibility in the receipt. “The conditions were plain and in the body of the receipt in a way not calculated to escape attention.” The shipping receipt constituted a valid and binding contract, and when defendant showed it had complied with the conditions on its part (which it could easily have done, had not the court below excluded its evidence), it was then discharged. (Grace vs. Adams Exp. Co., 100 Mass. 505; 98 Mass. 239; Coates vs. U. S. Exp. Co., 45 Mo. 238; 24 Ind. 403.)

2d. The court told the jury in this instruction that defendant was liable as a matter of law, without any reference to the conditions of the contract, and, excluding all proof of the performance of the conditions by defendant, took the case away from the jury, in effect. It sums up certain facts and ignores all other parts of the case and evidence, and as such it is highly objectionable. The gist of the case is negligence, and the question whether defendant was guilty of negligence is not submitted to the jury at all.

3d. It was not necessary to call plaintiff's attention to the contract. The terms on which the package was received were plainly printed in the body of the receipt. (Belger vs. Dinsmore, 51 N. Y. 166; 100 Mass. 505.)

III. The court committed error in refusing defendant's third instruction. It simply told the jury that a common carrier could limit its common law liability. (Coates vs. U. S. Exp. Co., 45 Mo. 238; Grace vs. Adams, 100 Mass. 505; York Co. vs. Central R. R., 3 Wal. [U. S.] 107; Hooper vs. Wells, 27 Cal. 11; 6 How. [U. S.] 382; 10 Ohio, 64; 19 Ill. 136.)

W. P. Johnson, for Respondent, cited: Levering vs. Union Trans. & Ins. Co., 42 Mo. 88; Ketchum vs. Am. Merch. Union Exp. Co., 52 Mo. 390; Coates vs. U. S. Exp. Co., 45 Mo. 238; Oppenheimer vs. U. S. Exp. Co., 1 Cent. Law Journal [1874] 107.

NORTON, Judge, delivered the opinion of the court.

This was a suit brought by plaintiff to recover money, alleged to have been lost from a package which defendant had received for transportation. The petition states, in substance, that defendant, as a common carrier, received from plaintiff a package containing $352.35, which he agreed to transport from Nevada, Vernon county, to Monroe City, Monroe county, and there deliver the same to Andrew Snider, and that for such transportation plaintiff paid defendant the sum of ninety cents; that defendant did not transport and deliver said package safely to said Andrew Snider, but so negligently and carelessly transported the same that there was lost from the package the sum of $100.50. The defendant, by answer, denied all the material allegations of the petition, and sets up as matter of defense that he did receive from plaintiff a sealed package said to contain $352.35, and at the time of its reception entered into a special contract with plaintiff, whereby it was agreed that defendant was only to forward the package to its agent nearest (or most convenient to) Monroe City, the place where said package was to be delivered, and then deliver the same to other parties to complete said transportation, and that such delivery was to terminate all liability of defendant. The answer further alleges that defendant safely delivered said package in good order, with contents unbroken or disturbed, to the United States Express Company at Sedalia, which was the nearest point to Monroe City, to which defendant transported.

Plaintiff, in his replication, denies all the allegations of defendant's answer.

On the trial of the cause, plaintiff offered evidence tending to show the delivery of a package, as charged in his petition, containing $352.35, which was received by defendant for transportation, and for which defendant at the time gave the following receipt:

ADAMS EXPRESS COMPANY.

“Form 15. $352.35. Nevada, Mo., July 13, 1872.--Received from H. I. Snider one package, sealed, and said to contain currency, addressed Andrew Snider, Monroe City, Monroe county, Mo., upon the special acceptance and agreement that this company is to forward the same to its agent nearest or most convenient to destination only, and then deliver the same to other parties to complete the transportation; such delivery to terminate all liability of this company for such package,” etc.

The evidence of plaintiff tended further to show that the package, when delivered at Monroe City, was in good order, but was short of the amount inclosed in it about $101, containing only $251.25 at the time it came to the hands of the consignee.

The defendant offered in evidence the deposition of Faulhaber, tending to show that Sedalia was the nearest point of destination to Monroe City for packages shipped from Nevada to Monroe City by the defendant, and that defendant did not have any line of transportation directly through from Nevada to Monroe City, and that the package in question was on the 13th of July, 1872, delivered by defendant in good order and unbroken to the United States Express Company, at Sedalia, by which company it was shipped to Monroe City. Defendant also offered in evidence the deposition of Warner to show that he was the messenger of defendant in charge of said package; that it was carefully carried from Nevada to Sedalia, and that defendant had no office nearer to Monroe City than Sedalia. Plaintiff objected to the reading of these depositions, on the grounds of incompetency and irrelevancy, which objections were sustained by the court, and to which defendant at the time excepted.

The court, at the instance of plaintiff, gave the following instruction:

“If the jury believe from the evidence that the plaintiff did on the 13th of July, 1872, at Nevada, Vernon County, Mo., deliver, or cause to be delivered, to the agent of defendant, a package of money, containing the sum of two hundred and fifty-two and 35-100 dollars; that the agent of defendant received the same and gave receipt therefor, and received pay to deliver said package to Andrew Snider, at Monroe City, and did not call the attention of H. G. Snider to the underwritten limitations of responsibility in the receipt read in evidence; that said package was received by Andrew Snider at Monroe City in good order, with a less amount of money in it than when delivered to the agent at Nevada; then the jury will find a verdict for plaintiff for the difference in the amount they may believe from the evidence was placed in the package at Nevada, and the amount in said package at the time of its delivery to Andrew Snider, in Monroe City, and may allow interest on the amount found from the time of demand, made August 5, 1872, to the present time, at 6 per cent.”

The court, of its own motion, gave the following instruction: “The court declares the law to be, that if the plaintiff at the time of...