Clark v. St. Louis, Kansas City, & Northern Ry. Co.

• Decision Date: 30 April 1877
• Citation: 64 Mo. 440
• Parties: A. CLARK, Respondent, v. ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

64 Mo. 440

A. CLARK, Respondent,

v.ST. LOUIS, KANSAS CITY, AND NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jackson County Special Law and Equity Court.

W. H. Blodgett, for Appellant.

I. An action cannot be maintained upon an implied contract, when there is an express contract subsisting between the parties in relation to the subject matter of the action, the express contract between the parties being entirely different in its terms from the contract implied by law. (Ang. Car., §§ 46, 54.)

Where an action is brought against one upon his implied undertaking as a common carrier, and the evidence shows that the defendant did not undertake the transportation of the goods as a common carrier, but as a private carrier, under the terms of a special contract, plaintiff cannot recover. For if the defendant stands in the position of a private carrier for hire, it is right that he should be permitted to make such defense as will exonerate him under his contract as a private carrier. (Merle vs. Hascall, 10 Mo. 409; Christy vs. Price, 7 Mo. 433; Murphy vs. Wilson, 44 Mo. 316; Jones vs. Lauderman, 39 Mo. 290; Harris vs. Han. & St. Joe. R. R., 37 Mo. 307; Davidson vs. Graham, 2 Ohio St. 122; Chambers vs. King, 7 Mo. 517.)

II. Suits commenced before justices of the peace, as well as suits commenced in courts of record, must be founded on the real cause of action existing between the parties. (Wagn. Stat. 850, § 18; Hausberger vs. Pac. R. R. Co., 43 Mo. 196.)

III. “If the owner of the goods in the hands of a private carrier accompanies the goods to take care of them, and is himself guilty of negligence by which the goods are lost, or if there is as much reason to attribute the loss to the negligence of one party as the other, the carrier is not liable.” (Ang. Car. § 57.) Where such are the facts, the burden of proof is not upon the defendant. (Louisville, C. & L. R. R. Co. vs. Hedger, Am. Law Reg. 1875, p. 149.)

S. P. Twiss, for Appellant, cited further: Ang. Com. Car. [4 Ed.], §§ 17-45, and notes; Lake Shore & Mich. South. R. R. vs. Perkins, 25 Mich. 329; Cragin vs. The New York Cent. R. R. Co. 51 N. Y., 61; Kimball vs. Rutl. & Burl. R. R., 26 Vt. 247; Ketchum vs. Am. Mer. Un. Ex. Co., 52 Mo. 390; Moriarty vs. Harnden's Ex., 1 Daly, [N. Y.] 227; Iron Mt. Bk. of St. L. vs. Murdock, 62 Mo. 70.

Ballingal & Gwynne, for Respondent.

I. Plaintiff's cause of action was properly stated in his written complaint filed with the justice of the peace, before whom this cause was originally instituted. It was of such a character as to fully apprise defendant of the nature and purport of plaintiff's claim. This the law holds to be sufficient. (Quinn vs. Stout, 31 Mo. 160; Iba vs. Han. & St. Joe. R. R. Co., 45 Mo. 469.)

II. The plaintiff's writ was based upon the “common law” liability of defendant arising from its character as a “common carrier.” “Negligence” was the gist of the action, and not the violation of any written stipulation contained in the contract for shipment.

The plaintiff proved that he delivered the hogs in controversy to defendant, that defendant received them for transportation, and that defendant had failed to account for the same. This much was amply sufficient to make out the plaintiff's case. After the introduction of this evidence the burden of proof was upon the defendant to show its exemption from liability on account of either the “act of God, or public enemies,” or that it was specially exempted from such liability, by contract with plaintiff. But the plaintiff went further, and proved negligence--wilful negligence--on the part of the defendant, The “common carrier” may, by contract, exempt himself from liability as an insurer against “accident” or “mistake,” but not against even slight negligence. (Levering vs. Union Trans. & Ins. Co., 42 Mo. 88; Wolf vs. Am. Ex. Co., 43 Mo. 421; Ketchum vs. Am. Merch. Union Ex. Co., 52 Mo. 390; Read vs. St. L., K. C. & N. R. R., 60 Mo. 199; Michigan Southern & Northern Ind. R. R. Co. vs. Heaton, 37 Ind. 448; N. Y. Cent. & H. R. R. R. Co. vs. Lockwood, 17 Wal. [S. C. W. S.] 357.)

The whole record shows that defendant was a “common carrier of live stock” for hire. It agreed to transport plaintiff's property, live stock, for $40.00 per car. By its said agreement and reception of the property, it is estopped from denying the character it voluntarily assumed. This is the general rule of law. (Chouteau vs. Goddin, 39 Mo. 229; Garnhart vs. Finney, 40 Mo. 449.)

NAPTON, Judge, delivered the opinion of the court.

The action in this case originated before a justice of the peace, and was for the recovery of damages alleged to have been occasioned by the loss of some hogs shipped on the freight cars of the defendant.

The petition filed with the justice stated that the plaintiff delivered to the defendant, a common carrier, one hundred and two hogs, which the defendant undertook to convey from Harlem to St. Louis; that only eighty-five hogs were delivered at St. Louis; that seventeen hogs were not delivered, worth ten dollars and thirteen cents each, making in all the sum of one hundred and seventy-two dollars and twenty cents, for which amount plaintiff sues.

Judgment by default was rendered by the justice against the defendant, from which an appeal was taken to the special law and equity court of Jackson county.

Upon the trial in the appellate court the defendant insisted that the statement of facts before the justice was insufficient, but the court overruled this objection, and the plaintiff proceeded with his evidence. It appeared in the course of this testimony, that the hogs were shipped under a written contract, which was as follows:

“S. L., K. C. & N. R. R. Co.

Kansas City Station,

September 23d, 1872.”

“Memorandum of an agreement made and concluded this day by and between the North Missouri Railroad Company of the first part, by the station agent at the above named station, and A. Clark of the second part, witnesseth, that whereas the North Missouri Railroad Company transports cattle, hogs, horses, pigs, sheep, lambs, calves or other live stock at the rate of $40 per car load, or-- cents per one hundred pounds, and advanced charges and other valuable considerations, the said party of the second part does in consideration thereof hereby agree to take the risk of injuries which the animals, or either of them, may receive in consequence of any of them being wild, unruly, weak, escaping, or maiming each other, or from delays, or in consequence of any hurt, suffocation or other effects of being crowded in the cars, or on account of being injured by the burning of hay or straw, or any other material used by the owner for feeding stock or otherwise, and for any damages occasioned thereby, and also all risks for damages which may be sustained by reason of any delay in such transportation, and that he will see to it that the cattle, etc., are securely placed in the cars furnished, and that the cars are properly and safely fastened, so as to prevent the escape of live stock therefrom, and it is further agreed between the parties that the first party shall in no case be held liable for damages to stock shippers under this contract in a greater sum than $200 for each horse, $100 for each cow, bull or ox, $50 for each sheep, calf or other animal; and it is further agreed that the said party of the second part is to load and unload said stock at his own risk, the North Missouri Railroad Company furnishing co-laborers to assist, who will be subject to the orders of the owner or his agent while in that service, and that the said party of the second part who will also assume all risk for damage or injury to, or escape of the live stock, which may happen to them while in the stock yards awaiting shipment, and that the said second party will assume the charge of feeding and watering and taking care of the stock enumerated herein, at his own expense and risk, while the same is in the stock yards of the first party awaiting shipment aboard the cars; and it is further agreed between the parties hereto, that the person or persons riding free to take charge of the stock do so at their own risk of personal injury, from whatever cause, and that the said person shall sign the indorsement on the back of this agreement; and this agreement further witnesseth that the said party of the second part has this day delivered to said North Missouri Railroad company two cars of hogs (one hundred more or less), to be transported to St. Louis station, on the conditions above expressed.

S. P. Brown, Station Agent.

A. Clark.”

The plaintiff's evidence tended to show that the hogs were put into two cars, and that before the owner had time to close the door of the car the train started, and that he informed the conductor of that fact. He got into the caboose at Harlem and did not get out until he reached the R. & L. Junction, about sixty miles from there, at which point he observed that the door was closed. The seventeen hogs...