Ficklin v. Wabash R. Co.

• Decision Date: 08 January 1906
• Parties: FICKLIN v. WABASH R. CO.
• Court: Missouri Court of Appeals

93 S.W. 847

117 Mo. App. 221

FICKLIN v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

Rehearing Denied March 3, 1906.

1. CARRIERS — NEGLIGENCE — COMMON-LAW LIABILITY—LIMITATIONS.

A carrier may, with the assent of the shipper, fairly obtained and on a sufficient and lawful consideration, restrict its common-law liability to such damages as result from negligence.

2. SAME—CATTLE CONTRACT—CONSIDERATION.

A contract for the shipment of freight limiting the carrier's liability, in consideration of the shipper "securing a reduced rate of freight," can be sustained, if at all, only on proof of such consideration.

3. SAME—EVIDENCE.

A carrier's cattle contract provided that the cattle were valued at $50 a head and were shipped subject to the rules of the company and of the schedule of valuation and weights; such valuation being named by the shipper "both for the purpose of securing a reduced freight rate" and that, in case of loss or injury to the cattle, the liability of the carrier should not exceed the amount per head so stated. The carrier had no other rate than that charged for the shipment of cattle of such valuation between the points in question, but did have higher rates for cattle of higher proportionate value, and also had but one form of contract which provided a limited liability. Held, that such contract was ineffective to limit the carrier's liability.

4. SAME—COMMON LAW—INTERSTATE SHIPMENTS.

The common-law liabilities imposed on common carriers are applicable to interstate shipments.

Appeal from Circuit Court, Gentry County; W. C. Ellison, Judge.

Action by Thomas Ficklin against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. S. Grover, for appellant. Peery, Lyons & Wood, for respondent.

JOHNSON, J.

Action for damages for negligent delay in the transportation of cattle to market. Plaintiff had judgment in the sum of $500, and defendant appealed.

The shipment consisted of 96 head of fat cattle and was made under written contracts of affreightment providing for through transportation from Stanberry, Mo., to the stockyards in Chicago, Ill. It left the former place at noon one Saturday, and, according to the evidence introduced by plaintiff, had it been forwarded with the usual expedition, would have reached the destination Sunday night in ample time for the best of Monday's market. The petition alleges, and there is substantial evidence supporting the charge, that the shipment was negligently and unreasonably delayed at various points to such an extent that delivery at the stockyards was not accomplished until about 10 o'clock Monday morning. It required about an hour to put the cattle in the sale pens in shape for exhibition to buyers, and, owing partly to the fact that the best of the market for that day was then over and partly because the cattle were worn out from lack of rest, food, and water, plaintiff was compelled to sell them at a reduced price, and suffered further damage from loss in weight resulting from the negligent treatment they received. We will not go into details in this branch of the case, but will content ourselves with saying that plaintiff pleaded and supported by proof a common-law cause of action, and the judgment should be sustained, provided we do not find that plaintiff bargained away his right to recover in the stipulations appearing in the shipping contract. Defendant contends that he did, but the trial court held otherwise, and in the instructions given in effect eliminated all of these special agreements from the consideration of the jury. Every question worthy of note presented by defendant depends upon their assumed validity and our discussion will be limited to that subject.

The contract begins with an application signed by the shipper, in which it is stated that the cattle are "valued at $50.00 per head and subject to the rules and regulations of the company and of the schedule of valuations and weights, * * * such valuations being named by me for the purpose of securing a reduced rate of freight: in case of loss or injury to said live stock the liability of the carrier or carriers shall not exceed the above amount per head." The contract then follows, in which it is provided "that the party of the first part [the carrier] and connecting lines will in consideration of the agreement herein contained forward for the second party * * * the following freight * * * from Stanberry, Mo., to Chicago, the responsibility of each carrier to extend hereunder only to its own line. At the rate of 23½ per cwt., which is a reduced rate expressly agreed upon between the parties hereto and in consideration of which rate the party of the second part stipulates and agrees as follows." Then follow 12 stipulations, each of which either contains some limitation of the carrier's common-law liability or imposes some duty upon the shipper. It will be noticed that all of these special agreements, every one of which is for...