Sloop v. Wabash R. Co.

• Decision Date: 19 December 1904
• Citation: 84 S.W. 111,117 Mo. App. 204
• Parties: SLOOP v. WABASH R. CO.
• Court: Missouri Court of Appeals

84 S.W. 111

117 Mo. App. 204

SLOOP v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

December 19, 1904.

CARRIERS — CONTRACT — PAROL EVIDENCE — QUESTION FOR JURY — LIMITING LIABILITY — SECONDARY EVIDENCE.

1. In an action against a carrier for delay in delivering live stock, where the contract did not provide within what time the transportation should be completed, and there was evidence that the special train in which the shipment was made, under ordinary conditions, should have arrived in time for the market the morning following the day of shipment, the question of defendant's exercise of due diligence was a mixed one of law and fact, which was proper for the jury.

2. In an action against a carrier for delay in delivering cattle, where the contract did not provide for the time of arrival, evidence is admissible that it was the understanding that they would arrive in time for the market the following morning, they being carried by special train.

3. Where there is no evidence of a reduction in the rate charged for a shipment of live stock, there was no consideration for the limitation of the carrier's liability in the contract, and such limitation is no defense in an action for delay in transportation.

4. Parol evidence of a carrier's printed schedule of freight rates on file with the interstate commerce commission is inadmissible.

Appeal from Circuit Court, Randolph County; Samuel Davis, Special Judge.

Action by John Sloop against the Wabash Railroad Company. Plaintiff had judgment, and defendant appeals. Affirmed.

Geo. S. Grover, for appellant. Fogle & Saxbury, for respondent.

BROADDUS, J.

This cause was before this court on a former occasion, and will be found reported in 93 Mo. App. 605, 67 S. W. 956. Before the cause was tried anew in the circuit court, plaintiff filed his third amended petition. The second amended petition upon which the case was formerly tried set out that: On the 10th day of October, 1900, he delivered to defendant for shipment 52 head of fat cattle, which defendant agreed, for certain charges to it paid, to safely and quickly transport and deliver to plaintiff's agents in Chicago, Ill.; that, if said cattle had been transported to said point within a reasonable time, they would have arrived at their point of destination in time to have been sold on the morning market of October 11, 1900, but that by reason of defendant's negligence they did not arrive for said morning market; that plaintiff was compelled thereby to hold them for the succeeding day, and that in the meantime the market declined. He claims that he was damaged by reason of being compelled to sell on the declining market, and for additional shrinkage of the cattle, and feed. The first count of the third amended petition is substantially like the foregoing, with the further allegations that a delivery of said cattle for the morning market of October 11th at Chicago was a reasonable time for their delivery, and that plaintiff and defendant knew and understood that plaintiff was shipping his cattle to be delivered in time for such market. The second count is like the first count of the petition, except that plaintiff sold his cattle late on the day of the 11th of October on a declining market, instead of on the following day.

The defendant, in its answer, among other matters, sets out a written contract between plaintiff and defendant containing the terms and conditions upon which said cattle were shipped. This writing specifies that the agreed rate of shipment was a reduced rate, and that in consideration of such reduced rate in case of loss or injury to said cattle plaintiff agreed that the value of any of said animals should not be in excess of $50, and that in consequence of any unusual delay or detention of said cattle while on their trip from any cause whatever the plaintiff agreed to accept as full compensation for such delay the amount actually paid out for food and water for said cattle. The answer also setup as a defense the interstate commerce law, and that thereunder it had a schedule of rates, made in compliance with said law, and that the contract of shipment between plaintiff and defendant was a lawful contract. The plaintiff's reply alleged that the contract set up in defendant's answer was unfair and fraudulent, but, as the court refused to so instruct the jury, it can have nothing to do with the questions in the case. The cattle were shipped at Queen City at about 5 o'clock a. m. on the 10th day of October, on a special train, which would arrive in Chicago, according to the usual time for such trains, in about 24 hours; but it did not arrive until about 4 hours later — that is, about 9 o'clock a. m. on the 11th day of October. These cattle were carried in the same train with other cattle to Decatur, Ill., where, for good reasons, the train was divided into two sections. The first going out arrived at Chicago in time for the morning market of that day; the second, containing plaintiff's cattle, arrived later, and not in time for said morning market. The market declined after the morning hours, and plaintiff kept his cattle, and sold...