Rice v. Wabash R. Co.

• Decision Date: 26 April 1904
• Citation: 106 Mo. App. 371,80 S.W. 974
• Court: Missouri Court of Appeals
• Parties: RICE v. WABASH R. CO.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 974

106 Mo. App. 371

RICE v. WABASH R. CO.^*

St. Louis Court of Appeals. Missouri.

April 26, 1904.

CARRIERS — CATTLE SHIPMENT — RATES — VALUATION — ESTIMATED WEIGHTS — BILL OF LADING — LIMITATION OF LIABILITY — CONSIDERATION.

1. In an action for injuries to beef cattle by delay in transit, evidence that they were valued at $50 a head at M., and sold at an average of $52.03 at East St. Louis, was insufficient to show that the cattle were undervalued, by reason of which a lower freight rate was secured than plaintiff would otherwise have been compelled to pay.

2. Where a shipper of cattle estimated the weight to the carrier at 1,200 pounds each, but the carrier's agent made an independent estimate of 1,100 pounds, and on his own motion incorporated such estimate in the contract of shipment, on which weight the freight rate was based, the carrier was estopped to claim that, by reason of the fact that the cattle overran the estimated weight, the shipment was made at a reduced freight rate, which entitled the carrier to limit its common-law liability.

3. In the absence of a special consideration therefor, a provision in a bill of lading for the shipment of cattle that the shipper, in consideration of the rate named, agreed to water and feed the stock at his own expense, and, in the event of any unusual delay or detention, the shipper agreed to accept as full compensation for any loss or damage the amount actually expended by him in the purchase of feed and water for the stock shipped, was unenforceable.

Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Action by S. M. Rice against the Wabash Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

George Robertson and Geo. S. Grover, for appellant. P. H. Cullen and R. D. Rodgers, for respondent.

BLAND, P. J.

The suit is to recover damages in loss of weight and a better market caused by the delay of defendant in shipping one car load of plaintiff's cattle from Mexico, Mo., to East St. Louis, Ill. We adopt the following statement of the facts from the abstract of appellant in respect to the shipment: "On the 8th day of February, 1903, the plaintiff was the owner of twenty-one head of cattle, which he desired to ship from Mexico, Missouri, to the National Stockyards at East St. Louis, Illinois. He went to the agent of the defendant in Mexico, and there signed an offer to ship said cattle; estimating their weight at 1,100 pounds each, and placing the value thereon at $50 per head. The defendant accepted this offer, and a contract of shipment was thereupon executed by the parties. There is no dispute as to the execution of this contract, nor of the fact that it was fairly made. About 7:30 or 8 o'clock that evening the cattle were loaded by plaintiff, and taken into one of defendant's trains, to be transported to the point of destination, and, in the usual course of transportation, would have reached their destination the next morning at from 8 to 9 o'clock, in time for the market of the 9th of February. The train carrying the cattle was a local train, and at Mexico picked up a car carrying a steam shovel. This steam shovel was on its way from some point in Minnesota to St. Louis; had come on to defendant's road at Des Moines, and for some reason stopped at Mexico; was there inspected by its car inspector, and then taken into this train to be forwarded on to St. Louis. Some parts of the device extended upward, and were higher than an ordinary freight car. In passing over the defendant's track from Des Moines to Mexico, it had safely passed through and over as many as three bridges with overhead structures similar to the bridge over the Missouri river at St. Charles, and on its way from Mexico to St. Charles passed safely through and over two more bridges of a similar design. The train carrying the cattle and the steam shovel arrived at St. Charles on time (about 3 o'clock in the morning), and, in passing through that bridge, came in contact with some of the girders overhead, thereby stopping and delaying the train. Plaintiff was on the train in charge of his cattle, and at that point he left, and took an M., K. & T. train for St. Louis. On account of this delay at St. Charles the cattle did not arrive at the stockyards until half past 2 o'clock of the 9th, consequently too late for the market of that day; were kept over and sold in the market of the next day. Plaintiff complains of the extra shrinkage of the cattle on account of this delay, and also that the cattle sold for a little less per hundred than they would have sold for, had they not been delayed." The plaintiff's evidence shows that he estimated the weight of the cattle (21 head) at 1,200 pounds each, but the agent of the company who signed the shipping contract said he would put their weight at 1,100 pounds each. The rate charged was 11¼ cents per hundred pounds, and the...