Illinois Central Railroad Co. v. Bogard

• Citation: 78 Miss. 11,27 So. 879
• Court: United States State Supreme Court of Mississippi
• Decision Date: 14 May 1900
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. ANDREW R. BOGARD ET AL

27 So. 879

78 Miss. 11

ILLINOIS CENTRAL RAILROAD CO. v. ANDREW R. BOGARD ET AL

Supreme Court of Mississippi

May 14, 1900

March 1900

FROM the circuit court of Lafayette county, HON. Z. M. STEPHENS Judge.

Bogard and another, appellees, were the plaintiffs in the court below; the railroad company, appellant, was defendant there. The suit was for damages to live stock shipped by the plaintiffs over defendant's road from Oxford, Miss. to St. Louis, Mo.

The stipulations of the contract of affreightment involved are correctly copied in the brief of appellant's attorneys and the nature of the controversies are sufficiently shown by the opinion of the court.

Affirmed.

Mayes &amp Harris, for appellant.

The contracts for shipment contain the following stipulation: "And the liability of the company for any loss or damage for which it may be responsible shall not exceed the actual cost at the point of shipment, and in no event exceed the above valuation for each animal."

It has been expressly decided in this state that the stipulation in the contract that, in case the company is liable, the value of the cattle at the time and place of shipment shall govern in fixing the amount, is reasonable and valid. Therefore, that must be accepted as the estimate of damages. Illinois, etc., R. R. Co. v. Langdon, 71 Miss. 146.

The contract further provides as follows: "It is further agreed by the shipper that no claim for loss or damage to the stock shall be valid against said railway company unless it shall be made in writing, verified by affidavit, and delivered to the general freight agent of the company at the point from which the stock is shipped, or to the agent of the company at the point of destination, within ten days from the time that the said stock is removed from said cars."

The court instructed the jury for plaintiff as follows: "The court instructs the jury that, although the plaintiff in this case did not propound his claim for damages in writing within the time and in the manner required by said contract, yet the conduct of the employees and officials of said railroad company in negotiating with the plaintiff for a settlement of the claim amounted to a Waiver of the proof of loss on the part of the company, and does not prevent the plaintiff from suing."

The question as to whether there was a waiver or not was a question of fact, and one which the jury should have passed upon.

The instruction was erroneous because it was on the weight of the evidence and assumed a fact which was for the jury to determine. Myrick v. Wells, 52 Miss. 149; Levy v. Holberg, 71 Miss. 66; Prine v. State, 73 Miss. 838; Odeneal v. Henry, 70 Miss. 172; French v. Sale, 63 Miss. 386; Johnson v. Stone, 69 Miss. 826.

James Stone, for appellees.

Is the contract value to govern the case of recovery where the loss is the result of the negligence of the carrier? Illinois, etc., Railroad Co. v. Langdon, 71 Miss. 146, when considered by itself, might lead to this conclusion, but in that case the evidence left it very doubtful whether the railroad company was guilty of any negligence; and if it was not, then certainly the contract value would control as to common law liability. This case seems to have turned on the points that there was no proper evidence of the value of the stock at the point of destination, only the amount of sales, unsworn to, was affirmed, and the evidence, says the court, made out a very doubtful case of the negligence of the carrier.

This certainly must be the proper interpretation of the case when we consider it in connection with the doctrine expressly laid down in Southern Express Co. v. Seide, 67 Miss. 609, and Chicago, etc., Railroad Co. v. Abels, 60 Miss. 1017. In these two last cases the doctrine was clearly announced that a stipulation in the contract limiting the recovery to less than the real value to the shipper, will control only in case of loss or injury resulting from other causes than negligence of the carrier, and that when the injury is the result of negligence or misconduct of the carrier, the measure of damage is the actual loss to the shipper. This seems to be the prevailing doctrine in other states. 12 Am. & Eng. Railroad Cases, 13; Ib., 37; 30 Am.& Eng. Railroad Cases, 40; 49 Am. & Eng. Railroad Cases, 157; 45 Am. & Eng. Railroad Cases, 315.

The instruction complained of is correct. There was a clear waiver in this case by officers of the company authorized to make the contract of shipment and authorized to receive the proof of loss. 21 Am. & Eng. Railroad Cases, 143; 35 Am. &amp Eng. Railroad Cases, 687; Rapalje & Mack's Digest Railroad Law, 770, secs. 80, 771, 774. For analogous cases see ...