94 S.W. 235 (Mo. 1906), Phoenix Powder Mfg. Co. v. Wabash Railroad Co.

Citation:94 S.W. 235, 196 Mo. 663
Opinion Judge:GANTT, J.
Party Name:PHOENIX POWDER MANUFACTURING COMPANY v. WABASH RAILROAD COMPANY, Appellant
Attorney:Geo. S. Grover and Henry W. Blodgett for appellant. Kinealy & Kinealy for respondent.
Judge Panel:GANTT, J. Brace, C. J., Burgess, Valliant, Fox, Lamm and Graves, JJ., concur.
Case Date:June 01, 1906
Court:Supreme Court of Missouri
 
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Page 235

94 S.W. 235 (Mo. 1906)

196 Mo. 663

PHOENIX POWDER MANUFACTURING COMPANY

v.

WABASH RAILROAD COMPANY, Appellant

Supreme Court of Missouri

June 1, 1906

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Transferred to st. louis court of appeals.

Geo. S. Grover and Henry W. Blodgett for appellant.

(1) A contract, if disaffirmed, must be disaffirmed in toto. Estes v. Reynolds, 75 Mo. 563. (2) If a shipper receives a bill of lading at the time the shipment is made and does not object to its terms, either then or at any time before it is too late to recall the property in the absence of fraud or mistake he is bound by it. Cau v. Railroad, 194 U.S. 427; O'Bryan v. Kinney, 74 Mo. 125; McFadden v. Railroad, 92 Mo. 343; Railroad v. Cleary, 77 Mo. 634; Kellerman v. Railroad, 136 Mo. 177; Arthur v. Railroad, 40 Am. and Eng. R. R. Cases 127. (3) While primarily the responsibility of a common carrier is that expressed by the common law, and the shipper may insist upon such responsibility, he may consent to a limitation of it, and so long as there is no stipulation for an exemption which is not just and reasonable in the eye of the law, the responsibility may be modified by contract. It is not necessary that an alternative contract be presented to the shipper for his choice. A bill of lading is a contract, and knowledge of its contents by the shipper will be presumed, and a provision therein against liability for damages by fire is not unjust or unreasonable. It is not necessary that there be an independent consideration apart from that expressed in the bill of lading to support a reasonable stipulation from exemption or liability. Cau v. Railroad, 194 U.S. 427. (4) While the burden may be on the carrier to show that the damage resulted from the excepted cause, after that has been shown, the burden is on the plaintiff to show that it occurred by the carrier's own negligence, from which it could not be exempted. Cau v. Railroad, 194 U.S. 427; Davis v. Railroad, 89 Mo. 340; Witting v. Railroad, 101 Mo. 631.

Kinealy & Kinealy for respondent.

(1) Appellant is liable as a common carrier for the loss of the goods in question since respondent did not ask or contract for any reduced rate of freight, and there is consequently no consideration for any alleged contract limiting appellant's liability. Such a contract must be an express agreement consented to by the shipper and supported by an independent consideration. Phoenix Powder Mfg. Co. v. Railroad, 101 Mo.App. 442; Kellerman v. Railroad, 68 Mo.App. 255; Levering v. Union T. & S. Co., 42 Mo. 88. (2) There is no Federal question in this record. Appellant undertook to carry these goods to destination and is liable for their loss, as its liability was not restricted. This is the law of Missouri and the Federal interstate commerce statute in no way affects it. Western Sash & Door Co. v. Railroad, 177 Mo. 641.

GANTT, J. Brace, C. J., Burgess, Valliant, Fox, Lamm...

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