Baker v. St. Louis & San Francisco Railroad Company
| Citation | 129 S.W. 436,145 Mo.App. 189 |
| Parties | JOSIAH BAKER et al., Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Decision Date | 09 May 1910 |
| Court | Court of Appeals of Kansas |
Appeal from Johnson Circuit Court.--Hon. Nick M. Bradley, Judge.
Judgment affirmed.
John H Lucas and J. W. Suddath & Son for appellant.
(1) A railway company is not bound to be ready for a wholly unprecedented and unforeseeable increase of traffic. Pruitt v. Railway, 62 Mo. 527; Meriwether v Railroad, 128 Mo.App. 647. (2) If damages accrue upon a verbal contract and a written agreement covering the same shipment waives the previous loss, thereby evincing an intention to cover the whole, in the writing, no action can be maintained for such loss under the verbal contract. Hoover v. Railroad, 113 Mo.App. 688; Fountain v Railroad, 114 Mo.App. 676; Boggs v. Steam Laundry, 171 Mo. 282; Miller v. Railroad, 62 Mo.App. 252; Meriwether v. Railroad, 128 Mo.App. 647; Luckey v. Railroad, 133 Mo.App. 589.
Bruce Barnett, E. B. Silvers and O. L. Houts for respondent.
(1) The common law duty of a common carrier to furnish facilities and transport freight is not concontractual. Com. Co. v. Railroad, 98 Mo.App. 213. (2) This is illustrated by the fact that where action is based on a contract to furnish cars, and the evidence only shows and order for cars, and consequently only a common law liability to furnish them, the action must fail, for plaintiff has pleaded a contract and proved a tort. Railroad v. Canning, 110 S.W. 965. (3) The contracts of carriers are construed most strongly against the carrier, being made for his protection. 5 Am. and Eng. Ency. Law (2 Ed.), 335. (4) And no exemption not expressly within the terms of the contract is allowed to the carrier. Richardson v. Railroad, 149 Mo. 311; Harrison Bros. v. Iron Works Co., 96 Mo.App. 357.
--Plaintiffs shipped 581 head of neat cattle over defendant's railroad from Tuttle, Oklahoma, to the market at Kansas City. They do not claim there was any delay in the transportation but plead as their cause of action the unreasonable and negligent delay of defendant in furnishing cars for the shipment. A trial before a jury resulted in a verdict and judgment for plaintiffs in the sum of five thousand dollars, and the cause is here on appeal of defendant.
In 1905, plaintiffs were operating a cattle ranch some ten miles from Tuttle and, in October of that year, decided to ship 581 head of fat cattle to market. Accordingly, on October 5th or 6th, plaintiff, Josiah Baker, who had an office at the stockyards in Kansas City, told the live stock agent of the defendant stationed there that plaintiffs expected to ship cattle from Tuttle on the 12th or 15th of October and would need twenty-five cars. The agent replied, "All right," and Mr. Baker went to Tuttle on October 12th to attend to the shipment. On the 13th he called on defendant's station agent at Tuttle and told him that plaintiffs, on the following day, would cut out the cattle to be shipped and bring them to Tuttle, and requested the agent to have twelve cars ready for loading on the 15th of the month and thirteen cars two days later. The agent replied, "All right," and asked at what hour plaintiffs desired the engine to be there to help in the loading. Mr. Baker answered, "Seven o'clock in the morning of the 15th."
According to the evidence of plaintiffs, no objection to furnishing the cars on the dates stated was offered by the agents, nor was any suggestion made that the cars might not be provided on account of a car famine or for any other reason. On the contrary, plaintiffs assured by the statements and actions of the agents that the cars would be provided in compliance with the order, cut out the cattle and drove them to Tuttle. The cars did not arrive until twenty-seven days had expired. Then the cattle were shipped to Kansas City where part of them were sold. The remainder were forwarded to Chicago and sold at that market. During the long wait for the cars, plaintiffs were compelled to pasture the cattle on strange pastures near Tuttle. Their own pastures were exhausted and those into which the cattle were turned were in poor condition. Added to this were unfavorable weather conditions and from these causes the cattle fared so badly they shrank in weight and became stale in appearance. The market steadily declined during the delay. No claim is made that plaintiffs were not damaged or that the verdict was excessive. The petition skillfully avoids basing the cause of action on an oral contract to provide cars, but charges defendant with a breach of its common law duty as a common carrier to provide cars to shipper on reasonable notice. The gist of the action pleaded appears in the following quotation from the petition:
"Plaintiffs state that the notice given by them to the defendant company, as aforesaid, upon the thirteenth day of October, 1905, of their desire to ship said cattle from said Tuttle, Indian Territory, to said Kansas City, Missouri, on the said fifteenth and seventeenth days of October, 1905, was a reasonable and sufficient notice and gave the defendant company, its agents, servants and employees reasonable and sufficient time to furnish and provide cars and facilities and to ship, transport and carry the said cattle upon the said fifteenth and seventeenth days of October, 1905; that the aforesaid delay of the defendant company, its said agents, servants and employees, in providing said cars and in shipping, transporting and carrying said cattle as aforesaid, was an unreasonable delay and was due to carelessness and negligence upon the part of the defendant company, its said agents, servants and employees."
The answer of defendant in addition to a general traverse interposes a number of special defenses based on the stipulations in shipping contracts which it is alleged by defendant and conceded by plaintiffs were signed by the parties just before the shipments left Tuttle. These contracts, twelve in number, are alike. Each begins with a "notice" that etc. The notice is followed by the application of the shipper in which he states: "This application is an election on my part to avail myself of a reduced rate, by making this shipment under the following contract, limiting the liability of such carrier, instead of shipping the same at a higher rate without such limitations." Then follows the contract which contains a number of limitations of defendant's common law liability, all based on the consideration of a reduced rate. Among such stipulations is the following:
"For the consideration aforesaid the shipper agrees to waive and release and does hereby release the company from any and all liability for or on account of delay in shipping said stock after the delivery thereof to its agent, and from any delay in receiving the same after tender of delivery, and for breach of any alleged contract to furnish cars at any particular time, and the shipper hereby releases and does waive and bar any and all causes of action for any damage whatsoever, that has accrued to the shipper, by any written or verbal contract prior to the execution hereon concerning said stock or any of them."
Another paragraph provides "That, as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the party of the first part, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination and before such...
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