Phoenix Powder Mfg. Co. v. Wabash Railroad Co.

• Decision Date: 01 June 1906
• Citation: 94 S.W. 235,196 Mo. 663
• Parties: PHOENIX POWDER MANUFACTURING COMPANY v. WABASH RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

94 S.W. 235

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 and Graves, JJ., concur.

OPINION

In Banc

GANTT J.

This is an appeal from a judgment of the circuit court of the city of St. Louis, for the plaintiff, for $ 1,548.97.

The action was for damages to the amount of two thousand dollars for a failure to safely carry from St. Louis to Twist, Texas, eight hundred kegs of blasting powder, eighty cases of forty per cent dynamite, and two barrels of D. T. fuse, and to deliver the same to W. R. Stubbs Contracting Company in as good condition as when received by defendant.

While enroute the car in which the said powder was stored, and said powder, were destroyed by fire and was never delivered. The defendant pleaded a special written contract with plaintiff whereby in consideration of a reduced rate of freight, it undertook to transport said goods to the end of its line only, and that by said special agreement neither defendant nor any of its connecting lines should be liable for the loss of said property occasioned by fire or the negligence of defendant or its connecting carriers, and would not be liable for any damages to the said property after it was receipted for in good order by the next succeeding carrier, and for the same consideration it was agreed that in case of loss the value should be computed as of the time and place of shipment, and said property should be transported at plaintiff's risk, and that it faithfully complied with said contract and transported said property safely over its line to Kansas City, the end of its line, and there safely delivered the same to the Rock Island Railway Company and said company safely transported the said property to Bowie, Texas, and there safely delivered the same to the Fort Worth and Denver Railway Railway Company, and that while in the possession of the last-named company, at Bowie, Texas, it was accidentally destroyed by fire.

The reply was a general denial of the new matter set up in the answer, and also set up facts surrounding the destruction of the car of explosives, and upon those facts charged that the destruction of the car was due to the negligence of the defendant. On the first trial of the case the plaintiff was nonsuited in the circuit court, and appealed to the St. Louis Court of Appeals, and the judgment was reversed and the cause remanded with a direction that the only matter to be investigated in the case, was the amount of the damage sustained by plaintiff. [Phoenix Powder Mfg. Co. v. Railroad, 101 Mo.App. 442, 74 S.W. 492.]

Upon the return of the case to the circuit court, an amended answer was filed, which was the same as the original answer except that it contained the following allegations:

"Defendant says that in the month of March, 1901, as well as long prior thereto, a certain act of Congress of the United States entitled, 'An Act to Regulate Commerce,' approved February 4, 1887, with the various amendments thereto enacted by said Congress in the years 1888, 1889, and 1891, respectively, was in full force and controlled all shipments over the railroad of defendant from all points on its lines in Illinois and Missouri, to all points on its connecting lines in the State of Texas, and elsewhere beyond the state line of Missouri. That in due compliance with said law of the United States then and there in force as aforesaid, defendant had in March, 1901, and still has, on file with the Interstate Commerce Commission, a body created by said act of Congress above cited, at the office of said commission in the city of Washington, D. C., its printed schedules or tariffs, showing the rates of freight then in force, for all classes of property, including live stock, from all points on its own railway...