Jennings v. Smith

• Decision Date: 02 January 1901
• Docket Number: 683.
• Citation: 106 F. 139
• Parties: JENNINGS v. SMITH.
• Court: U.S. Court of Appeals — Seventh Circuit

106 F. 139

JENNINGS v. SMITH.

No. 683.

United States Court of Appeals, Seventh Circuit.

January 2, 1901

The plaintiff in error was the plaintiff below in an action against the defendant, as a common carrier, for injuries to four coach horses and loss of other property, caused by a collision through the negligence of the defendant while transporting the property from Chicago to California. Although the action was tried under additional counts in case, the testimony of the plaintiff disclosed the fact that the transportation was furnished at special rates, under a special contract with the initial carrier at Chicago, the Atchison, Topeka & Santa Fe Railway Company, stipulating among other matters, that the rate given 'is lower than the rate made by the railway company for the transportation of stock at carriers' risk, and without limitation of liability, and is based upon the conditions and agreements found in this contract, and upon the valuations therein fixed'; that the shipper accepts the conditions by signing the contract; that the shipment is for tender or delivery only to connecting carriers, and the guaranty of through rate is on condition that the shipper execute like contract to and with the connecting carrier on demand; that the shipper 'represents and agrees that his live stock does not exceed in value the price below named' (which is $100 per head for the horses); and that the liability of the company in case of loss or damage shall be based on such valuation, and not exceed the same. This contract was signed by the plaintiff with the understanding that the initial carriage thereunder terminated at Albuquerque, N.M., where delivery was to be made to the defendant as connecting carrier, and that the plaintiff was there to enter into like special contract with the defendant for carriage to destination; and delivery was made and the contract in controversy was executed accordingly. The injury occurred on the defendant's line under the latter contract, and was caused by a rear-end collision, resulting from negligence in the operation of the defendant's trains. The extent of the injury was thus stipulated at the trial: 'The total value of the four horses after the accident was $90,' and the value of the other property destroyed was $125. Proof was received on behalf of the plaintiff, under objection, that the actual value of the horses as delivered for carriage was $2,500 to $3,000. The contention on the part of the plaintiff that the special contract was not binding upon him, aside from the argument upon grounds of public policy, rests upon the circumstances attending its execution, which are thus stated substantially by the several witnesses: The plaintiff applied for through rates at the Chicago office, and the regular tariff rate was quoted, but he then answered 'that was entirely too high; that Mr. Bissell (the general freight agent) would certainly do better than that for him,' as he had done the year before for the same service. They then went to Mr. Bissell, who authorized giving 'him the benefit of the same rate on this shipment' (the so-called 'emigrant movable rate'), the plaintiff to furnish the special car required for the horses and to execute the special contract for such rate when ready for shipment. The plaintiff further testified (under objection, 'as tending to show some different agreement') that he went to the freight office for the contract when the car was loaded, and had the following colloquy with the clerk who tendered the contract for signature: 'I objected to signing that on account that my horses were more valuable than that. He said that that did not cut any figure. I made a vigorous kick. He said it didn't cut any figure, and was merely a form.' The contract was then executed; and the plaintiff further stated that he signed the same contract for the previous shipment and 'made the same fuss about it too.' The plaintiff's coachman was present when the contract was executed, and states that the plaintiff examined it, and said, 'This is drawn up just as it was the year before.' At the close of the testimony the court instructed the jury that the plaintiff was bound by the valuation of the horses stated in the contract, and directed a verdict accordingly at the valuations otherwise stipulated, finding the defendant guilty, and assessing the plaintiff's damages at $435. Exceptions being duly preserved to such instruction, the plaintiff assigns error thereupon in various forms, substantially stating two grounds: (1) That the contract is void as an attempt against public policy to limit the common-law liability of the carrier; (2) that there was evidence that the contract was not fairly made, but was obtained by false representations, raising an issue of fact which should have been submitted to the jury. The opinion of the trial court on motion for a new trial is reported (C.C.) 99 F. 189.

James C. McShane, for plaintiff in error.

Robert Dunlap and C. N. Steny, for defendant in error.

Before WOODS and GROSSCUP, Circuit Judges, and SEAMAN, District Judge.

SEAMAN District Judge, after making the foregoing statement, .

The material facts in the case are undisputed. The plaintiff in error, desiring shipment of four coach horses, with accompanying property and attendants, from Chicago to San Diego, Cal., applied for through rates of freight, and was informed of the regular tariff rates...