Donovan v. Sells Fargo & Co.

• Decision Date: 01 June 1915
• Docket Number: No. 16961.,16961.
• Citation: 177 S.W. 839,265 Mo. 291
• Parties: DONOVAN v. WELLS FARGO & CO.
• Court: Missouri Supreme Court

177 S.W. 839

265 Mo. 291

DONOVAN v. WELLS FARGO & CO.

No. 16961.

Supreme Court of Missouri.

June 1, 1915.

In Banc. Appeal from Circuit court, Buchanan County; W. K. Amick, Judge.

Action by John Donovan against Wells Fargo & Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action brought in the circuit court of Buchanan county for the negligent killing of a horse of plaintiff by defendant, while defendant was engaged as a carrier in transporting said horse from Boston, Mass., to St. Joseph, Mo.

As a foreword, we may say that respondent, pending this appeal here, died, and this cause has been properly revived in the names of John D. Richardson and J. G. Schneider, as administrators of the estate of respondent, deceased. With this fact kept In mind, we see no valid reason for disturbing the style of this case, and will refer to the substituted respondents as plaintiff, and to appellant herein simply as defendant.

The facts which are necessary to an understanding of the points discussed are as follows: Col. John Donovan, originally plaintiff, now, as stated, deceased, some time in the latter part of May, 1907, procured one Louis Pfingst, a resident of Boston, Mass., and a friend of plaintiff, to purchase for him a valuable horse named "Flexo," being the same which was killed by defendant's negligence. The price paid for the horse Flexo by plaintiff was the sum of $2,600. Plaintiff, being desirous of having this horse shipped by express from Readville, Mass., a suburb of Boston, to St. Joseph, Mo., procured the delivery of the horse by said Pfingst at the office of defendant in Boston. A day or so prior to such delivery, one Nichols, the agent of defendant at St. Joseph, called on plaintiff with a view of procuring for defendant the transporting of the horse. Relating what occurred in his conversation with Nichols, plaintiff testified as follows:

"I told Mr. Nichols that I had a horse and a mare at Boston, and I asked him what it would cost me to deliver them at St. Joseph. He told me $135 each. I asked him if it was the same price for each horse, without regard to value. He said, `Yes.' I asked him if a horse that I bought for $2,600, and was worth that many thousand, ought not to be charged any more than a mare that cost $270, and was worth about $350. He said a horse was a horse, and all carried at the same rate, and he quoted a case where I had shipped a big Percheron stallion to Portland, Or., that weighed 2,300 lbs., and he was carried at a rate of a thousand Pounds. He said all horses were alike. I thought that that was a pretty big price for the shipment, and I wrote to W. T. Van Brunt, who was a director in the Wells Fargo Company in New York. I had had some previous shipments with them, and I asked him if that was I asked if, on account of the value of the horse, I should require a special car. I asked Mr. Nichols if, on account of the value of the horse, I should not have a special car, and a man in charge, and he told me, `No,' that they would be shipped in portable stalls, in the regular express car, where a man who understood it would care for them, and where there was always at least one messenger right in the car with them, day and night, and that I would get them in three days from the time they left there. That was my contract with Mr. Nichols, and he said he would arrange the shipment in Boston, which he did, as far as I know. I asked Mr. Nichols if there was any chance of him being mistaken about the value of the horse, and told him that by shipping by freight a stallion was always charged three or four times as much as a gelding or a mare and he said that the absence of that in express shipments, and the difference in time, was cc hat made the price; and I told him to go ahead and do it, and he said he would instruct Boston, and that I would have no further trouble about it."

Shortly after the above conversation, plaintiff became ill, though he had in the meantime and prior to his illness, apparently, sent the following telegram to said Pfingst, which (date, address, and signature omitted) is, to wit:

"Please send both horses quick by Wells Fargo Express without man in charge. Express people will feed and care for them. I leave it to you about Flexo harness and traps. I naturally want all necessary to work him; do not know how much that requires as have never seen him rigged for work. Wire me when they leave."

The above telegram was shown by Pfingst to defendant's agent at Boston, who thereupon wired Nichols at St. Joseph as follows:

"A man whose responsibility is unknown to me shows despatch from John Donovan, St. Joseph, ordering two horses forwarded by Wells Fargo to St. Joseph, asks us to furnish whole car. Please interview consignee, telegraph us suitable instructions. Horses now at Readville, exclusive office Adams Express, ten miles from Boston, therefore shipment must be brought to Boston if Wells Fargo is to handle."

In answer to the telegram last above, Nichols wired the below message to agent of defendant at Boston:

"Secure Donovan horses. Have them driven to Boston and forwarded by our line. Don't want whole car, but do want safe handling in portable stalls. Wire departure. Have quoted him three rates on one thousand pounds each. No special valuation."

Prior to sending the above telegram, Nichols had called on plaintiff for further instructions; but plaintiff, being ill, was unable to see him, though the nature of Nichols' business, which was to obtain certain and definite information as to the manner in which plaintiff desired to have the horse shipped, was communicated to plaintiff by the latter's daughter. Plaintiff thereupon wrote a note to defendant's agent Nichols, as follows:

"Don't want exclusive car. Don't want man in charge. Do want horse (sic) brought to Boston and shipped by W. F. Ex. at price named by you $135.00 each."

Following these instructions, Pfingst on May 29, 1907, delivered the horse Flexo to defendant, together with a little mare not here in controversy, upon an express car at Boston, and on delivering these horses executed what is called in the record a "limited liability live stock contract." The form of these contracts is so well known that we do not deem it necessary to take up space with the whole of this one, and content us therefore with setting out only such parts as are necessary to make clear the discussion. The contract in question began with a "Notice to shippers," which notice, continuing, provided that:

"The shipper will value his stock, which valuation will be inserted in the contract, and the charge for carriage will be based on such valuation."

Other clauses pertinent ran thus:

"This contract made at Boston, Mass., this 29 day of May, 1907, between Wells Fargo & Company, party of the first part, hereinafter called the express company, and L. Pfingst, hereinafter called the shipper, party of the second part, witnesseth: That the express company undertakes to forward to the railroad depot reached by the express company, which is nearest to destination, the animals hereinafter mentioned, of which the shipper declares himself to be the owner (or duly authorized agent of the owner), to wit: * * * One horse consigned to John Donovan at So. St. Joseph, Mo., for the sum of one hundred thirty-five dollars and no cents, which charge is fixed by and based upon the value of said animals as declared by the shipper, as hereinafter mentioned. (Italics ours.)

"And in consideration of the premises, said parties agree: That the shipper, before delivering the said animals to said express company, demanded to be advised of the rates to be charged for the carriage of said animals as aforesaid, and thereupon was offered by said express company alternative rates proportioned to the value of said animals, such value to be fixed and declared by the shipper, and according to the following tariff of charges, viz.:

"Charge for the shipment at these values: "For horses, jacks or mules of a value not exceeding $75.00 each. * * *

"When the value declared by the shipper exceeds the value stated in the preceding paragraph, an addition to the foregoing charge will be made according to the following schedule, to wit: When the merchandise rate is * * * over $3.00 per 100 lbs. and not over $5.00 per 100 lbs., the additional charge will be 12 per cent. of excess valuation.

"The shipper in order to avail himself of said alternative rates, and in consideration thereof, being asked by the express company to value said property, now declares the value hereinafter mentioned to be the true values of said animals so to be shipped as follows: Number and kind, one horse; value, $50.00. * * *

                  "Wells Fargo & Company
                    "By McGowan, Agent
                       "Party of the first part
                  "Louis Pfingst
                     "(Duly authorized Agent of the Owner.)
                        "Party of the second part."
                

The horse Flexo was in the course of transportation so badly injured by the negligence of defendant as to cause his death. This action thereupon followed, and the trial below resulted in a verdict for plaintiff for the sum of $10,000; the same being the value of the horse as found by the jury.

Upon the trial, defendant, having duly pleaded all applicable provisions of the In. terstate Commerce Act, offered among other things its duly filed and published tariff sheets, which were in force on the date of the making of this shipment, and which, together with regulations governing shipments, had theretofore been duly filed with the Interstate Commerce Commission as required by law. In brief, these tariff sheets showed that the merchandise rate from Boston to St. Joseph was $4.50 per hundred pounds; that the rate on horses was three times the said merchandise rate, based upon the arbitrary estimated weight of 1,000 pounds for each horse, regardless of the actual weight thereof; thus making the charge for the carriage of a horse of a declared value not...