Blankenship v. St. Louis & San Francisco Railroad Company

• Decision Date: 08 January 1912
• Citation: 142 S.W. 471,160 Mo.App. 631
• Parties: E. H. BLANKENSHIP, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent
• Court: Missouri Court of Appeals

142 S.W. 471

160 Mo.App. 631

E. H. BLANKENSHIP, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, Springfield

January 8, 1912

Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

L. M Henson for appellant.

(1) The law fixes the maximum rate defendant was allowed to charge for the shipment in question at carrier's risk, this being an intra-state shipment and the contract shows on its face that defendant charged all that it was allowed under the law to charge for the shipment without any limitations on its common-law liability. It could not, therefore, call the same a lower or a reduced rate. Paddock v. Railway, 155 Mo. 524. (2) The law has delegated to the board of railroad and warehouse commissioners of this state authority to fix reasonable maximum freight rates and make schedules governing the shipment of all classes of freight, including live stock and such rates and schedules are binding on both the shipper and carrier. Session Acts 1875, p. 113; R. S. 1909, secs 3251-3257. (3) The contract offered in evidence by the defendant does not bring this case within the rule laid down in Harvey v. Railroad, 74 Mo. 538 and Mires v. Railway, 134 Mo.App. 379, but on the contrary the law applicable to this case has been clearly defined in the following cases; McFadden v. Railway, 92 Mo. 343; Ficklin v. Railway, 117 Mo.App. 221; Creel v. Railway, 137 Mo.App. 27; Van Buskirk v. Railway, 143 Mo.App. 707; Kellerman v. Railway, 136 Mo. 177; Paddock v. Railway, 155 Mo. 524; Potts v. Railway, 17 Mo.App. 394; Doan v. Railway, 38 Mo.App. 408; Vaughn v. Railway, 62 Mo.App. 461.

W. F. Evans and W. J. Orr for respondent.

(1) That a common carrier may by contract based on rates limit its common law liability. Mires v. Frisco, 114 S.W. 1052; Harvey v. Railroad, 74 Mo. 538; Hart v. Railroad, 112 U.S. 331; Snider v. Express Co., 63 Mo. 383; Kethen v. Express Co., 52 Mo. 390; Reed v. Railroad, 60 Mo. 199; Rice v. Railroad, 63 Mo. 314; Sturgeon v. Railroad, 65 Mo. 569; O'Brien v. Kinney, 74 Mo. 125; Kellerman v. Railroad, 136 Mo. 177; McFadden v. Railroad, 92 Mo. 343; Wyrick v. Railroad, 74 Mo.App. 406; Duvenrick v. Railroad, 57 Mo.App. 556; Gerber v. Railroad, 63 Mo.App. 148; Patterson v. Railroad, 56 Mo.App. 662; Phoenix Mfg. Co. v. Railroad, 101 Mo.App. 456. (2) It is the duty of the shipper to read the contract before or at the time he signs the same. Grace v. Adams, 100 Mass. 507; Railroad v. Cleary, 77 Mo. 638; O'Brien v. Kinney, 74 Mo. 126; Ins. Co. v. Railroad, 72 N.Y. 93; Durgin v. Express Co., 20 A. (N. H.) 328; Macfarlane v. Express Co., 137 F. 982; Montague v. Hyde, 82 F. 682; Dunbar v. Railroad, 40 S. E. (S. C.) 884; Ullman v. Railroad, 87 N.W. 41; Railroad v. Weakley, 8 S.W. (Ark.) 137; Railroad v. Dexter, 39 So. 634. (3) The shipper is presumed to be acquainted with the contract which he signs, whether read or not, and in the absence of fraud or mistake, will not be permitted to say he did not know. Railroad v. Weakley, 50 Ark. 397; 5 Am. and Eng. Ency. of Law, 293; Cau v. Railroad, 194 U.S. 427; Arthur v. Railroad, 194 U.S. 427; Railroad v. Cleary, 77 Mo. 638; Gerber v. Railroad, 63 Mo. 145; Wyrick v. Railroad, 74 Mo.App. 406; Ballou v. Earle, 17 R. I. 441; Durgin v. Express Co., 20 A. (N. H.) 328; Macfarlane v. Express Co., 137 F. 982; Jones v. Railroad, 45 A. and E. R. Cases (Ala.), 323; Arthur v. Railroad, 139 F. 130. (4) It is a reasonable regulation on the part of carriers to base their rates on the value of the property shipped and especially is this true of live stock. Musser v. Express Co., 1 F. 385; Graves v. Railroad, 50 Am. Rep. 283; Express Co. v. Foley, 46 Kan. 457; Alair v. Railroad, 53 Minn. 160; Express Co. v. Carnahan, 64 N.E. 647; Johnston v. Railroad, 55 A. and E. cases, 349; Railroad v. Fraloff, 100 U.S. 27; Besheer v. Railroad, 131 S.W. 767; McElrain v. Railroad, 131 S.W. 736. (5) The carrier's agent is not required to read or explain the contract to the shipper, or to call the latter's attention to the limitations therein contained, unless the shipper requests the agent to do so. Railroad v. Cleary, 77 Mo. 634; Kellerman v. Railroad, 136 Mo. 177; Express Co. v. Foley, 46 Kan. 457; Dunley v. Railroad, 20 A. (N. H.) 327; Railway v. Harwell, 45 A. and E. R. Cases, 358. (6) Live stock contracts of shipment when signed by shipper and carrier are binding on both, if reasonable and are not opposed to the law of public policy, and they cannot be impeached except for fraud or mistake entering into their execution and the burden of pleading and proving such fraud or mistake rests with the party asserting it. Patterson v. Railroad, 56 Mo.App. 662; Railroad v. Cleary, 77 Mo. 638; Grace v. Adams, 100 Mass. 507; Railroad v. Plow Co., 41 N.E. 480; Johnston v. Railroad, 55 A. and E. R. Cases (S. C.) 349; Ballou v. Earle, 33 Am. St. 883; Jennings v. Smith, 106 F. 142. (7) All recitals contained in the live stock contract, signed by the parties, which limit the carrier's common law liability, are prima facie true, while those made by the shipper against his interest, are conclusively presumed to be true. Railroad v. Cleary, 77 Mo. 834; McFadden v. Railroad, 92 Mo. 343; Hart v. Railroad, 112 U.S. 331; Cau v. Railroad, 194 U.S. 427; Gerber v. Railroad, 63 Mo.App. 145; Wyrick v. Railroad, 74 Mo.App. 406; O'Brien v. Kinney, 74 Mo. 126. (8) It is not material that the rates and the limitations contained in the contract were not discussed before or at the time the contract was signed, or that nothing was said about these. Wyrick v. Railroad, 74 Mo.App. 406; Cau v. Railroad, 194 U.S. 427.

OPINION

GRAY, J.

This suit was instituted to recover the value of two horses that were killed while being shipped from St. Louis to Matthews, in this state. The horses were delivered to the company at Broadway station, St. Louis, and for their shipment an ordinary box car was used, and in order to allow proper ventilation, one of the doors was left open and three strips of flooring were nailed across the open space to prevent the horses from falling out of the car. The plaintiff offered testimony tending to prove that he called for a grain door, but was told by the agents of the defendant that none could be had, and that the flooring would be sufficient. Some place between St. Louis and Matthews two of the horses fell out of the car and defendant admits their loss. In fact the sole contention of the defendant was, in the trial court, and now is, that by a special contract, entered into at the time of the shipment, defendant's liability is limited to $ 100 per horse. The trial court took this view and instructed the jury that plaintiff was only entitled to recover $ 100 per head for his horses, and a verdict was returned in accordance with the instruction, and judgment entered thereon, and plaintiff appealed to this court.

The defendant offered in testimony the special contract relied on, and containing the following stipulations:

"THIS AGREEMENT, made in duplicate at St. Louis, Bdy. station this 23rd day of December, 1909, between the St. Louis and San Francisco Railroad Company, herein called the 'Company,' and E. H. Blankenship, herein called the 'Shipper;' Witnesseth, that in consideration of the reduced rate upon which this shipment is transported, and of the mutual promises herein set forth of the parties hereto, it is agreed between said parties as follows:

"1. The Company shall transport the following cars of live stock, and the parties in charge thereof, viz., one car, said to contain nine head of horses consigned to E. H. Blankenship, consignee, from St. Louis station to Matthews, Mo., station on the line of this Company; and if the destination is beyond the line of this Company, shall deliver the same at said station to a carrier whose line may form a part of the route to Matthews, Mo., the place of destination; at the reduced rate of 18c per cwt., or--which is less than the rate for shipments at carrier's risk. . . .

"12. The valuations of the live stock which are agreed upon are the actual cash values of the same at the time and place of shipment, but in no case, however, to exceed one hundred dollars ($ 100) for each horse or pony, gelding, mare or stallion, mule or jack; fifty dollars ($ 50) for each ox, bull or steer; thirty dollars ($ 30) for each cow; ten dollars ($ 10) for each calf or hog; three dollars ($ 3) for each sheep or goat. In case of death, loss or total injury of the live stock from any cause for which the Company may be liable, payment shall be made therefor at said valuations, and in case of partial injury the amount of damages paid shall not exceed the proportions said partial injury shall bear to death, loss or total injury."

The plaintiff offered testimony that when he applied for the car, and at the time the shipment was made, the agent handed him the contract to sign and stated that it was the kind of a contract that all shippers signed, and the kind he would have to have if he shipped his horses over the road.

In behalf of the defendant, a Mr. Bather, tariff clerk of the defendant company, testified that the distance from St. Louis to Matthews was 174 miles, and the regular tariff rate eighteen cents per hundred pounds, and that the minimum weight on a thirty-six foot car was 23,200 pounds; that this rate was based on horses of the valuation of $ 100; that where the declared valuation exceeded the $ 100, an additional freight of ten per cent per hundred pounds or per car for each 100 per cent or fractional part thereof of additional value, was added.

The agent who executed the contract in behalf of the defendant testified that to the best of his knowledge he had no...