Harvey v. Terre Haute & Indianapolis R.R. Co.

• Citation: 74 Mo. 538
• Parties: HARVEY, Appellant, v. THE TERRE HAUTE & INDIANAPOLIS RAILROAD COMPANY.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of Missouri

74 Mo. 538

HARVEY, Appellant,

v.THE TERRE HAUTE & INDIANAPOLIS RAILROAD COMPANY.

Supreme Court of Missouri.

October Term, 1881.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Geo. W. Cline and Joseph Dickson for appellant.

A common carrier cannot, by special contract, limit his liability, so as to excuse himself from the consequences of his own negligence. Railroad Co. v. Lockwood, 17 Wall. 357; Laing v. Colder, 8 Pa. St. 479; Camden, etc., R. R. Co. v. Baldauf, 16 Pa. St. 67; Goldey v. R. R. Co., 30 Pa. St. 242; Powell v. R. R. Co., 32 Pa. St. 414; Pa. R. R. Co. v. Henderson, 51 Pa. St. 315; Farnham v. R. R. Co., 55 Pa. St. 53; Empire Transp. Co. v. Wamsutta Oil Co., 63 Pa. St. 14; s. c., 3 Am. Rep. 515; Jones v. Voorhees, 10 Ohio St. 145; Davidson v. Graham, 2 Ohio St. 131; Wilson v. Hamilton, 4 Ohio St. 722; Welsh v. R. R. Co., 10 Ohio St. 65; Cleveland R. R. Co. v. Curran, 19 Ohio St. 1; s. c., 2 Am. Rep. 362; Cincinnati, etc., R. R. Co. v. Pontius, 19 Ohio St. 221; s. c., 2 Am. Rep. 391; Sager v. Portsmouth, 31 Me. 228, 238; School District v. R. R. Co., 102 Mass. 556; s. c., 3 Am. Rep. 502; Indianapolis R. R. Co. v. Allen, 31 Ind. 394; Orndorff v. Express Co., 3 Bush 194; Berry v. Cooper, 28 Ga. 543; Levering v. Union T. Co., etc., 42 Mo. 88; Kirby v. Express Co., 2 Mo. App. 377; Folletsown v. R. R. Co., 55 Me. 462. It is as much against the policy of the law to limit the liability to a part of the loss, as it is to stipulate against the entire loss. Kirby v. Express Co., 2 Mo. App. 369; Orndorff v. Express Co., 3 Bush 194; Levering v. Union T. Co., 42 Mo. 88; Ketchum v. Express Co., 52 Mo. 391. The shipper is not limited to the sum represented as the value at the time of the shipment. U. S. Ex. Co. v. Bachman, 2 Cin. Sup. Ct. 251; s. c., 28 Ohio St. 144; Nashville R. R. Co. v. Jackson, 6 Heisk. (Tenn.) 271; Mich., etc., R. R. Co. v. Heaton, 37 Ind. 448; s. c., 10 Am. Rep. 89; O. & M. R. R. Co. v. Selby, 47 Ind. 471; s. c., 17 Am. Rep. 719; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251.

Pattison & Crane for respondent.

As the freight was paid upon the horse at the rate charged for one of the value of $100, the plaintiff, if he can recover at all, can recover only that sum. Batson v. Donovan, 4 B. & Ald. 21. If the horse had any value as a trotting or fancy horse, and that fact was not made known to respondent, it was a fraud, and the plaintiff cannot now avail himself of it. The owner of the horse affixed his value, and is estopped from now denying it. After the differences in freight arising out of values were made known to him, he selected the rate fixed for a horse of the value of $100, which is conclusive against him upon the question of value. The concealment of the value of the horse over and above $100 may have induced less care on the part of defendant than would have been practiced if the value now claimed had been made known, and, therefore, the owner conduced to the loss. Addison on Torts, (Wood's Ed. 1876) § 703, pp. 773, 774; Wolf v. Am. Ex. Co., 43 Mo. 421, 426; Relf v. Rapp, 3 W. & S. 21; Orange Co. Bank v. Brown, 9 Wend. 116; Story on Bailm., (8 Ed.) § 565; Angell on Carriers, (4 Ed.) § 258, 261; Elkins v. Empire Trans. Co., 81 Pa. St. (32 P. F. Smith) 315; Kallman v. U. S. Ex. Co., 3 Kas. 205; Richards v. Westcott, 2 Bosw. 604; 1 Smith Lead. Cas., (pt. 1) 390; Little v. R. R. Co., 66 Me. 239; Phillips v. Earle, 8 Pick. 182; Boscowitz v. Adams Ex. Co., 93 Ill. 523; s. c., 34 Am. Rep. 191; Adams Ex. Co. v. Stettaners, 61 Ill. 187; s. c., 14 Am. Rep. 57; Kember v. Express Co., 22 La. Ann. 158; s. c., 2 Am. Rep. 719; Southern Ex. Co. v. Crook, 64 Ala. 475; s. c., 4 Am. Rep. 140; Green v. Express Co., 45 Ga. 309; Everett v. Express Co., 46 Ga. 303; Baldwin v. Steamship Co., 74 N. Y. 125; s. c., 30 Am. Rep. 277; 2 Redfield on Railways, (5 Ed.) p. 120, § 179, pt. 5; Mather v. Express Co., 9 Reporter 430; Lawson on Carriers, § 20; Railroad Co. v. Fraloff, 100 U. S. 24; Lewis v. Railway Co., L. R., 3 Q. B. Div. 195; 5 Rep. 383; McCance v. Railway Co., 7 H. & N. 477; 31 L. J. Exch. 65; Hart v. Penna. R. R. Co., 7 Fed. Rep. 630.

This being an action upon contract--a contract made by Dickson and with which Harvey had nothing to do--and not an action for a tort, or an action founded upon any common law liability of defendant, Harvey was not the proper person to sue. Dickson cannot be considered Harvey's agent. (1) An agent must act for, and in accordance with the wishes of, the principal. This contract gave Dickson the right to act for himself, and, if he chose, contrary to the wishes and instructions of appellant. (2) The authority of an agent is revoked by the death of the principal. Appellant's death, however, would not have affected Dickson's control or possession of the horse. (3) The principal can be held liable on the contracts of the agent. Yet it is plain that had Dickson, after signing the contract, refused to deliver the horse for transportation, or to pay the agreed price therefor, appellant could not have been held, and no action would have lain by respondent against him. Even assuming that Dickson was an agent, yet he had a beneficial interest in the performance of the contract, and a special property in the subject matter of the agreement, and was the party to sue. Porter v. Raymond, 53 N. H. 519. Harvey's right of property as well as his right of possession was suspended by the contract. Edwards on Bailm., (2 Ed.) § 369. So that he could not maintain trespass against a third party for injuries to the animal. Putnam v. Wyley, 8 Johns. 432; Swift v. Moseley, 10 Vt. 208.

HOUGH, J.

This was an action brought by appellant in the St. Louis circuit court, upon a special contract for the transportation of a trotting horse from East St. Louis to Philadelphia. This contract was entered into by and between the respondent, by one Bacon, its station agent, and William T. Dickson, of St. Louis, and contained an agreement on the part of respondent to transport a horse for said Dickson from East St. Louis to Philadelphia, at reduced rates; and an agreement on the part of said Dickson that, in consideration of such reduced rates, he would assume certain risks; it further provided for passing free the person in charge of the horse; that the horse was to be carried at the owner's risk, and his value, if injured or killed, was $100.

The petition alleges that respondent is a corporation organized under the laws of Illinois, but does not allege that it is a common carrier, nor what business it was organized to carry on, nor what it was carrying on at the date of the contract. It also alleges that the horse was a “trotting horse, worth $10,000;” that he belonged to plaintiff, and that William T. Dickson, who executed the contract, was his agent; that the horse was placed by respondent in a defective and unsound car, and that respondent's agents and servants were careless and negligent in the management of the road and trains, and that by reason thereof the horse was injured, to plaintiff's damage in the sum of $11,000

The answer puts in issue the ownership of the horse and its value; admits the execution of the contract, but alleges that it was made with Dickson, who represented that the horse belonged to him, and that he was acting for himself, and denies the other allegations of the petition. As an affirmative defense it sets forth the following facts: that respondent had certain regular rates for transportation of horses of ordinary value, and that for horses of greater value five per cent on the owner's valuation was charged, in addition; that when this horse was offered for transportation, the agent of respondent asked his value, and was told that it was $100; that thereupon Dickson and the agent of respondent agreed upon that as the valuation, and a contract was drawn up and signed by both parties, which contained among its provisions the words: “Owner's risk--value, if injured or killed, $100;” and that respondent, if liable at all, was liable only for $100

The new matter in the answer was put in issue by the reply.

The evidence of plaintiff tended to show that he was the owner of the horse; that he was worth, at the time of shipment, $8,000 to $12,000; that his value consisted in his record made at races; that he was injured during his transit to Philadelphia so as to make him worthless as a race horse, and not worth more than $60 to $100 for any purpose. The value put upon him was designated in the testimony of one of plaintiff's witnesses as a “fancy value.” Dickson testified that he executed the contract sued on, but that he did it as the agent of appellant; that his agency arose out of a contract between him and appellant, which is as follows:

“This agreement, made and entered into this 17th day of November, 1874, by and between George Harvey, of Bunker Hill, state of Illinois, party of the first part, and William T. Dickson, of St. Louis, State of Missouri, party of the second part; Witnesseth: That whereas, the said Harvey is owner of a bay trotting gelding, by the name of ‘Nino,’ and is desirous of placing him under the care, control and management of said Dickson for one year, to be kept and trained by him for that time, with the privilege of entering and trotting said horse in any place said Dickson may think best during that period; it is mutually agreed and understood by and between the parties as follows, to-wit: That said Dickson shall take and keep possession of said horse from this date, for the full term of one year; that during said time he shall have exclusive management, charge and control over him, with the privilege of trotting him at whatsoever place or places he may deem best or decide upon, free from any interference by the said Harvey; that he shall, during that time, keep a just and true account of all expenses of whatever kind incurred and paid by him for the care, attendance and keeping of said horse, entrance fees, traveling expenses, including...