Brothers s v. St. Louis & San Francisco Railroad Company

• Decision Date: 02 February 1915
• Citation: 173 S.W. 96,188 Mo.App. 22
• Parties: THOMAS BROTHERS, Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

173 S.W. 96

188 Mo.App. 22

THOMAS BROTHERS, Respondents, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 2, 1915

January 5, 1915, Submitted on Briefs

Appeal from Reynolds Circuit Court.--Hon. E. M. Dearing, Judge.

Judgment reversed and cause remanded.

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

The live stock contract offered in evidence by the defendant is valid under the Interstate Commerce Act and the trial court erred in excluding it. American Silver Mfg. Co. v Railroad, 156 S.W. 830; Adams Express Co. v Croninger, 226 U.S. 491; Railroad v. Carl, 227 U.S. 639; Railroad v. Harriman Bros., 227 U.S. 657; 13 Interstate Com. Rep. 550; Railroad v. Mugg, 202 U.S. 242; Hart v. Railroad, 112 U.S. 231; Carr v. Railroad, 194 U.S. 427; Mires v. Frisco Co., 114 S.W. 1052.

Orchard & Cunningham for respondent.

(1) The printed abstract of record must show the extension of the time for filing bill of exceptions, giving date of order extending time and to what date the time is extended, and also the date of filing bill of exceptions; this is necessary so that the court can see whether the bill of exceptions is filed within the time limited, and this is true notwithstanding the amendment to section 2029, R. S. 1909, and the ruling thereon. Dorman v. Coon, 119 Mo. 68; School District v. Boyle, 113 Mo.App. 340; Smith v. Russell, 157 S.W. 813. (2) There is no showing in the abstract of record that any motion for new trial was ever filed during the term and within four days from the rendition of judgment, and this is fatal to the bill of exceptions if any had ever been filed. Smith v. Russell, 157 S.W. 813; Donovant v. Rinn, 170 Mo.App. 73. (3) The so-called bill of exceptions fails to show any objections or exceptions to the action of the court in overruling its motion for a new trial. The bill of exceptions shows by a statement that the motion for new trial was filed and the next entry is that defendant filed its application and affidavit for appeal, then the next order is a motion for new trial and in arrest of judgment are both overruled, then an appeal is granted to the St. Louis Court of Appeals. Then after the appeal was granted and the trial court had no further jurisdiction of the case, the following appears in the bill of exceptions, to-wit: "To which action of the court in overruling its motion for new trial and motion in arrest of judgment, counsel for defendant then and there objected and excepted." This is insufficient to save the exceptions and bring them before this court. Exceptions must be saved to each specific ruling of the court as it occurs during the progress of the trial, and it will not do, as was attempted here, to fail to except when the motion to set aside the nonsuit was overruled, and then seek to cure the omission by a general exception when the motion in arrest is overruled. City of St. Joseph v. Ensworth, 65 Mo. 628; Harrison v. Bartley, 51 Mo. 170; Moran v. Stewart, 246 Mo. 462; McKee v. Jones Dry Goods Company, 152 Mo.App. 241. (4) Under the law and all the rules of pleading a motion for new trial must be filed before a motion in arrest and must be passed upon by the court before passing on the motion in arrest. Farmers Bank v. Bayliss et al., 41 Mo. 274. (5) Appellant's first contention is that the live stock contract offered in evidence by the defendant is valid under the Interstate Commerce Act and that the trial court erred in excluding it. We are of the contrary opinion; before the defendant can claim any rights under the Interstate Commerce Act it must have complied with all the rules laid down in the act. The courts hold that the railroad company must show a compliance therewith, the statement in the case below cited, we think is the proper rule. American Silver Mfg. Co. v. Railroad, 156 S.W. 813. (6) This contract introduced in evidence is without consideration and void. There is nothing inserted showing what the rate was which is essential, the contract had blanks in the printed contract wherein it was intended. When such contract was really to be made to insert the rate alleged to be "reduced rate" in consideration of which the carrier was to be relieved of its common-law duty, these blanks in this alleged contract were not filled, there is no rate specified, there was no evidence to show what the rate was other than the regular tariff rate (in the case at bar the tariff rate is not mentioned), which is essential. George v. Railroad, 214 Mo. 551; Beshur v. Railroad, 151 Mo.App. 80. (7) Answering the second paragraph in appellant's brief will state that the contract being without consideration, no part of it is binding on the respondent and that clause number 13 requiring notice is not binding on respondent. And this being a common-law action plaintiff does not have to prove a compliance with the contract but it devolves on the defendant who pleads it as a defense to show non-compliance. McNichol v. Pacific Express Co., 11 Mo.App. 401; Brown v. Railroad, 135 Mo.App. 624; Libby v. Railroad, 137 Mo.App. 276.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--Plaintiffs brought this action to recover for the loss of a mule said to have been injured while being transported by defendant railroad company from Birch Tree, Missouri, to the National Stock Yards, at East St. Louis, Illinois. The ground upon which recovery is claimed is that the car furnished plaintiffs for the transportation of this mule, along with eighteen others, was unsafe and not in proper repair or condition, or so became out of repair in transit, and that one of the slats in the car was broken, or so became broken in transit, and that by reason of the defective car the mule got his leg through the opening caused by the breaking of the slat and thereby breaking its leg, and from which injury the mule died.

The answer, after a general denial, avers that this mule, together with the other mules, was shipped under a special live stock contract filed with the answer, by which contract, as it is averred, defendant undertook and agreed to transport the car containing the nineteen head of mules from Birch Tree to the consignees named at East St. Louis, Illinois. It is further averred that defendant kept and performed each and every condition of the contract on its part; that the contract was voluntarily entered into by plaintiffs and that they had the option of shipping under the contract or of not shipping under the contract; that each and all of the conditions in the contract are based upon the consideration of a lower rate, as in the contract stated. Among the conditions of the contract set out, one is to the effect that the company "will not be responsible for any death, loss, injury sustained by the live stock from any defect in the cars, escape of live stock, or because the live stock are wild, unruly, or weak or maim each other or themselves," etc. Another is that the extent of the company's liability in case of injury or loss should not exceed the sum of $ 100. Another set out and pleaded as a condition precedent to the right of recovery is that the shipper "shall give notice, in writing, of his claim, to some general officer of the company, or to the nearest station agent or the agent at destination, and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be properly and fully investigated," and that a failure to comply with this condition should be a bar to the recovery of damages.

The reply sets up, after a general denial, that plaintiffs had no option to enter into any contract with defendant for the shipment of their stock at either a reduced or increased rate; that the contract signed by them was made out by the agent and delivered to them for their signatures and nothing was said in regard to a minimum rate or maximum rate, based on the value of the mules, and that the contract was the same in all respects as is furnished to all shippers from Birch Tree, Missouri, to "St. Louis, Missouri," and that there is no maximum rate or minimum rate fixed therein and none was entered into in this contract. It is further averred that nothing was said between plaintiffs and defendant's agent relative to the value of the mules at the time they were shipped, and no agreement made that the mules were to be valued at not to exceed $ 100 in consideration of reduced rates, as no reduced rates were agreed upon. Plaintiffs further deny that it was their duty to inspect the cars to ascertain whether they were sound or in good condition or not, the stipulations in said contract to the contrary notwithstanding; that it was the duty of defendant to furnish plaintiffs good and sound cars for the shipment of their stock, and any stipulation or agreement inserted in the shipping contract was void as to these plaintiffs and against public policy. They further deny that the mule which was injured while in transit was injured by the mules being wild or unruly, but aver that the mule was injured by a slat being broken out of the car, denying that the slat was broken by the mule or by mules in the car. They further deny that it was provided in the contract that in case of liability the value of the stock should be the actual cash value of the same at Birch Tree, Missouri, and in no way to exceed the sum of $ 100, plaintiffs averring that there was no consideration for any such stipulation and that it was void. So also it is averred that the stipulation as to notice was void as without consideration, and that defendant had waived that condition by entering into negotiations for the settlement of the claim and based its refusal to settle wholly and solely on other grounds than that of not...