Harrison v. Missouri Pacific Ry. Co.

Decision Date31 October 1881
Citation74 Mo. 364
PartiesHARRISON v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
CourtMissouri Supreme Court

Appeal from Lafayette Circuit Court.--HON. W. T. WOOD, Judge.

AFFIRMED.

Thos. J. Portis, E. A. Andrews and H. S. Priest for appellant.

Contributory negligence on the part of the plaintiff, that is, the plea that plaintiff caused his own damages, cannot, in any case where damages are sued for, be considered as irrelevant or redundant.

If the plaintiff did know, or might have known, that the agent had no authority to make such a contract to deliver cars at a certain time and place, and still saw proper to take the risk of the agent's being able to do so, anyhow, plaintiff had no right to call on defendant to pay any damages he may have sustained on account of a failure by the agent to carry out such unauthorized promise. Plaintiff knowingly took the risk, and he should stand the consequences.

The evidence did not show that the agent, who is alleged to have made the said verbal contract with plaintiff, was in that particular respect acting or specially authorized to act for the defendant, or that defendant permitted him to hold himself out to the public as having such authority. H. & St. Jo. R. R. Co. v. Green, 68 Mo. 179; Brown v. R'y Co., 67 Mo. 122. Ayres v. Milroy, 53 Mo. 523. On the contrary, the proof is that he did not have such authority, and that, by the published and advertised rules of defendant he was positively forbidden to exercise any such authority, and he swore he never did.

It was necessary for plaintiff to allege and prove that the delay in furnishing the cars (even if the alleged verbal contract with the agent was valid) was unnecessary, or caused by a want of due diligence. Newell v. Smith, 49 Vt. 230, 255; Pruitt v. R. R. Co., 62 Mo. 527; Vail v. R. R. Co., 63 Mo. 230. “A written contract generally contains the deliberate, definite and final agreement of the parties, and therefore parol evidence of the negotiations prior to the execution of the written instrument is inadmissible either to vary or to contradict the writing.” 1 Wait's Actions and Def., 131.

Alexander Graves and Belch & Silver for respondent.

There was no error in striking out the averments in defendant's answer concerning “negligence and accident,” for ( a) They were so defectively pleaded as to amount to no defense. Code, §§ 3527, 3521; 71 Mo. 516; Sappington v. Jeffries, 15 Mo. 628; Leduke v. R. R. Co., 4 Mo. App. 491; Pier v. Heinrichshoffen, 52 Mo. 336; Phillips v. Evans, 38 Mo. 312; Thompson v. R. R. Co., 51 Mo. 192; Buesching v. St. Louis Gaslight Co., 73 Mo. 219. ( b) Inevitable accident would be no defense, even if well pleaded. This suit is upon a contract to furnish cars and ship at a prescribed time, and defendant would be held to rigid performance notwithstanding inevitable accident. The Harriman, 9 Wall. 172; Hutchinson on Carriers, § 317; Angell on Carriers, § 294; Place v. Union Express Co., 2 Hilton 33; Atkinson v. Ritchie, 10 East 530; Deming v. R. R. Co., 48 N. H. 455; Spence v. Chadwick, 10 Q. B. 517; Hadley v. Clark, 8 T. R. 267; Youqua v. Nixon, 1 Peters C. C. 221; Harmony v. Bingham, 2 Kernan 99; Parmalee v. Wilks, 22 Barb. 539; Paradine v. Jane, Aleyn 26.

The shipper has a right to presume authority in the station agent to make such a contract as that sued upon, and nothing short of actual knowledge will affect the shipper. Northrup v. Ins. Co., 47 Mo. 439; Pruitt v. R. R. Co., 62 Mo. 540; Kerr v. Willan, 2 Stark. 53; Wilson v. Railway, 18 Eng. Law & Eq. 557, 558, 559; B. & O. R. R. Co. v. Brady, 32 Md. 333; Deming v. R. R. Co., 48 N. H. 455; 2 Redfield on Railways, (3 Ed.) 113; Story on Agency, (8 Ed.) §§ 127, 443; Goodrich v. Thompson, 44 N. Y. 324. The parol contract was not merged in the bill of lading, and defendant having failed to plead his bill of lading, it could not be considered by the jury. Strohn v. R. R. Co., 21 Wis. 562, 554; C. & T. R. R. Co. v. Perkins, 17 Mich. 296; Detroit & M. R'y Co. v. Adams, 15 Mich. 458; Bostwick v. B. & O. R. R. Co., 45 N. Y. 712; Coffin v. R. R. Co., 64 Barb. 380; King v. Woolbridge, 34 Vt. 565; Oxley v. R. R. Co., 65 Mo. 629; Northrup v. Ins. Co., 47 Mo. 436; Pomeroy on Remedies, §§ 710, 705; 29 Barb. 170.

NORTON, J.

This is a suit instituted in the circuit court of Lafayette county by a petition which substantially alleges that plaintiff, who was a dealer in and shipper of cattle to St. Louis, on or about the 23rd day of June, 1877, entered into a verbal contract with defendant, whereby defendant agreed and bound itself to receive and ship 194 head of plaintiff's cattle from Lexington to St. Louis on Monday, the 25th day of June, 1877, and for that purpose defendant expressly agreed and bound itself to furnish thirteen stock cars at its depot in Lexington on the day and year last aforesaid; that defendant entered into said contract with full knowledge that plaintiff was shipping said cattle to St. Louis for the purpose of selling the same on speculation; that defendant wholly failed to furnish the said thirteen cars on the 25th day of June, 1877, and would not and did not provide plaintiff any means for the transportation of said cattle, nor would not receive said cattle for transportation till Tuesday evening of June 26th, 1877; that if plaintiff's cattle had been received and shipped in the cars agreed to be furnished on the 25th day of June, they would have reached St. Louis on the 26th day of June, 1877, but that in consequence of defendant's said failure the cattle did not reach St. Louis till the evening of the 27th day of June; that on the 26th day of June plaintiff's cattle were worth in St. Louis six and a half cents per pound gross, and were only worth on the evening of the 27th five and a half cents per pound; that by reason of defendant's failure to furnish cars on the 25th day of June and ship as agreed, plaintiff had sustained that loss as well as loss for extra shrinkage of the cattle while detained at Lexington and extra expense incurred in caring for them, for all of which he asked judgment.

The defendant's answer is as follows: Defendant denies each and every allegation in said petition contained; and for other and further answer and defense herein defendant says, that any damages sustained by the plaintiff in this case were the result of his own negligence and careless acts and conduct and want of proper care and prudence, directly contributing to produce the same. And for other and further answer and defense herein defendant says, that by the rules, regulations and directions of the defendant, in force at the time the said contract to furnish cars to plaintiff was made, as he alleges, adopted, issued and published for the information and government of defendant's agents, and the shippers of live stock and other freights over defendant's railroad, and well known to this plaintiff and his agents, or which might by the exercise of ordinary care and prudence have been known, it was provided “That no agent of the company is authorized to agree to furnish cars for live stock, grain or other freight at any specified time, and will make requisition for cars in the order in which shippers have applied for them, and when received will distribute them in like manner.” And defendant further avers that any alleged contract between the plaintiff herein, and any agent or agents of defendant to furnish him cars for the shipment of live stock at any particular place or any given or stated time, was in violation of such rules and regulations, and was null and void and in no manner binding upon the defendant. And for other and further answer and defense herein defendant says, that the cars were prevented from arriving at Lexington at the time plaintiff wished them to be there by an unavoidable accident and delay.

1. PLEADING: contributory negligence.

On the trial of the cause plaintiff obtained judgment for the sum of $2,760, from which defendant has appealed, and among others assigns for error the action of the court in striking out, on plaintiff's motion, the following portion of the answer, viz: “And for other and further answer and defense herein, defendant says that any damages sustained by the plaintiff in this case were the result of his own negligent and careless acts and conduct and want of proper care and prudence, directly contributing to produce the same.” Waiving the question as to whether the defense attempted to be set up was or not inconsistent with defendant's general denial, the action of the court in striking it out may well be sustained on the authority of the case of Waldhier v. Hannibal & St. Joseph R. R. Co., 71 Mo. 516, where it was held “that a petition by an employe stating, without any specific facts, that plaintiff was injured in consequence of the negligence of a railroad company in using defective machinery and in running and managing its railroad and cars, would be fatally defective.' If necessary to state the particular facts constituting negligence before a railroad company can be made liable for the consequences of negligence, it follows necessarily that when such company seeks exemption from liability to the party complaining, on the ground that the injury complained of was occasioned by the negligence of the other party, it should also set up the facts constituting such negligence.

2. ______: principal and agent: contracts.

The action of the court in striking out of defendant's answer the following words, “or which might by the exercise of ordinary care and prudence have been known,” is also assigned for error. As will be seen from the answer it avers “that the station agent had no authority to make the contract sued upon, and that plaintiff knew the fact, or might by the exercise of ordinary care and prudence have known it.” It may, we think, be safely affirmed that a station agent clothed with the power, and whose duty it is to receive and forward freight, who makes a contract within the scope of his...

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