Donovan v. Wells Fargo & Co.

• Citation: 177 S.W. 839,265 Mo. 291
• Parties: JOHN DONOVAN v. WELLS, FARGO & COMPANY, Appellant
• Decision Date: 01 June 1915
• Court: United States State Supreme Court of Missouri

177 S.W. 839

265 Mo. 291

JOHN DONOVAN v. WELLS, FARGO & COMPANY, Appellant

Supreme Court of Missouri

June 1, 1915

Appeal from Buchanan Circuit Court. -- Hon. W. K. Amick, Judge.

Reversed and remanded.

Lathrop Morrow, Fox & Moore and Culver & Phillip for appellant.

(1) The shipment in question was interstate. It was therefore controlled by the Interstate Commerce Act and its amendments. Under section 20 of the Carmack Amendment to said act, as construed by the Supreme Court of the United States, the plaintiff in this case could not recover more than the declared value on which the shipping rate was based as shown by defendant's filed and published tariffs and as provided in the shipping contract. The court erred in permitting the recovery of the full value notwithstanding these tariffs and said contract. Express Co. v Croninger, 226 U.S. 491; Railroad v. Miller, 226 U.S. 513; Railroad v. Latta, 226 U.S. 519; Kansas City Southern Ry. Co. v. Carl, 227 U.S. 639; M. K. & T. Ry. Co. v. Harriman, 227 U.S. 657. (2) It is no defense to the shipper to say that he was not familiar with the tariffs or that his shipping agent violated his instructions. It is presumed that the shipper has taken notice of the duly filed tariff; and such tariff and a contract made pursuant to its terms are binding and conclusive on both shipper and carrier. Kansas City Southern Ry. Co. v. Carl, 227 U.S. 639; Great Northern Ry. Co. v. O'Connor, 232 U.S. 508.

John E Dolman for respondents.

We agree with the defendant that there is only one point in this case, and that it is to be determined by the construction of the Interstate Commerce Act. We assume for the purpose of presenting it that where there are two rates based upon value, the value fairly declared by the shipper as the true value determines the legal rate which the carrier must exact and the shipper pay, and which the court must accept in determining the rights and liabilities of the parties; and that the rule of law which has always obtained in this State and most other common law jurisdictions that a carrier will not be permitted to contract against liability for the negligent performance of his public duties has been modified (if it be a modification) to that extent by the Interstate Commerce Act, but we insist that the rule thus established has no application in this case, because there was no such declaration or agreement. Boston & Maine Ry. Co. v. Hooker, 233 U.S. 97.

FARIS J. Woodson, C. J., and Blair, J., not sitting.

OPINION

In Banc

FARIS, J.

-- 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, Massachusetts, to St. Joseph, Missouri.

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:

Colonel John Donovan, originally plaintiff, now, as stated, deceased, sometime in the latter part of May, 1907, procured one Louis Pfingst, a resident of Boston, Massachusetts, 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 $ 2600. Plaintiff being desirous of having this horse shipped by express from Readville, Massachusetts, a suburb of Boston, to St. Joseph, Missouri, 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 twenty-six hundred dollars, and was worth that many thousand, ought not to be charged any more than a mare that cost two hundred and seventy dollars, and was worth about three hundred and fifty dollars. 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, Oregon, that weighed twenty-three hundred pounds, 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 what 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 forward 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's 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 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

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