Leas v. Quincy, O. & K. C. R. Co.

• Decision Date: 13 February 1911
• Court: Missouri Court of Appeals
• Parties: LEAS et al. v. QUINCY, O. & K. C. R. CO.

136 S.W. 963

157 Mo. App. 455

LEAS et al. v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

February 13, 1911.

Rehearing Denied May 1, 1911.

1. CARRIERS (§ 150)—EXEMPTING FROM LOSS —NEGLIGENCE.

A common carrier cannot, by any kind of agreement, exempt itself from loss accruing by reason of its own negligence.

2. CARRIERS (§ 154)—EXEMPTING FROM LOSS —LIMITATION.

A common carrier may, for a valuable consideration, limit the amount of damages to be paid the owner for any loss or injury to the shipment by the carrier's negligence, but a stipulation placing a limited valuation on the property shipped, in case of loss by the carrier's fault, when not made in consideration of special or reduced rates, is not binding on the shipper.

3. CARRIERS (§ 154)—EXEMPTING FROM LOSS —"REDUCED RATE."

Where a carrier had but one regular rate applicable to a given class of property, it is not a reduced or a special rate that will serve as a consideration for an owner's risk contract, as the word "reduced" implies a comparison, and it is not permissible to go outside the subject-matter to seek the comparison; but it must be made with another higher rate on the same class of property, and where there is no such rate there can be no reductions.

4. CARRIERS (§ 218)—CONTRACTS—EXEMPTING FROM LOSS—RATES.

Where a carrier had one rate on horses valued at $100, which was the regular tariff rate, and the contract of shipment attempted to differentiate that rate into a reduced rate, by comparing it with higher rates charged for horses of higher value, such a comparison is improper, and it will not serve as a consideration for a limited valuation clause.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Action by Walter E. Leas and others against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. G. Trimble and Willard P. Hall, for appellant. R. E. Ash and John W. Bingham, for respondents.

JOHNSON, J.

Plaintiffs allege that a race horse owned by them and valued at $1,000 was injured by the negligence of defendant during the transportation of the animal from Hurdland to Green City, over defendant's railroad, and they pray for the recovery of the damages sustained by them in consequence of the injury. The answer, in addition to a general denial, pleads defenses based on the provisions of the shipping contract. A trial to a jury resulted in a verdict and judgment for plaintiffs in the sum of $500, and the cause is here on the appeal of defendant.

The facts of the case are as follows: In the fall of 1908 plaintiffs raced their horse at various fairs in northeastern Missouri. The horse, a trotter, achieved a record of 2:25 at one of the races where he finished first, and plaintiffs were taking him to Green City to enter him in the races at that place. Other horsemen were shipping their horses with plaintiffs', and five horses were loaded in the same car and were shipped under one contract. One of the other horsemen attended to the shipping and signed the name of plaintiff Leas to the contract as shipper. The contract recited:

"That for and in consideration of (here insert rate) 7 per cwt., subject to minimum weights as shown in published tariffs, the said railroad company agrees to transport one car loaded with horses * * * from Hurdland to Green City, * * * upon the following terms: That, whereas, the said first party, before delivering the said animals to said railroad company, demanded to be advised of the rate to be charged for the carriage of said animals, as aforesaid, and thereupon was offered by the said railroad company alternative rates proportioned to the value of said animals; and whereas, such alternative rates are made in pursuance of the provisions relating thereto of the classification of freights adopted as regulations by the said railroad company, and fully set forth as follows, to wit: Live stock —ratings given above are based upon declared valuations by shippers, not exceeding the following:

                Each horse or pony (gelding, mare or
                 stallion), mule or jack ............   $100 00
                Each ox, bull or steer ..............     50 00
                Each cow ............................     30 00
                Each calf ...........................     10 00
                Each hog ............................     10 00
                Each sheep or goat ..................      3 00
                

"When the declared value exceeds the above, an addition of 25 per cent. will be made to the rate for each 100 per cent. or fraction `thereof, of additional declared valuation per head'; which said alternative rates are fully shown in and upon the regular tariffs and classifications printed, published, and posted by the said company as required by law; and whereas, the first party, in order to avail himself of said alternative rates, and to secure the benefits thereof, has declared and does hereby declare said animals to be of the value as follows, to wit: Each horse, value $100.00."

Further it was provided "that in case of loss or damage to said animals, whether resulting from accident or negligence of said railroad company or its servants, the said railroad company shall not be liable in excess of the actual loss or damage; and in no case shall the said railroad company be liable in any manner in excess of the agreed valuation upon each animal lost or damaged."

The evidence of defendant shows that the rate charged in this instance was the usual and, in fact, the only rate defendant had on horses valued at not to exceed $100 per head, and that it had but one form of contract for shipments at this rate, and that was the form from which we have quoted and which, under the pretext of the consideration of a reduced rate, attempted to release defendant from a part of its common-law liability.

Defendant's general passenger and ticket agent testified in part as follows: "Q. I believe you understood my question, if you know of any other different rate charged for a car of the minimum of 21,800 pounds from Hurdland to Green City, of a higher rate having been charged? A. No, sir; I do not. I don't know, for the reason that nearly everybody takes advantage of the $100 valuation. Q. Was that always accepted? A. We put it up to the shipper. If he says $100, we haul him for that, and if he says $200 we assess the freight. Q. Do you mean to say that in your experience, Mr. Jacobs, you never knew of any other rate being charged? A. I don't believe a man ever put on the extra valuation. I don't remember of it. Q. When a shipper asks for the rate, you invariably give him that rate? A. We quote the rate on $100. By a Juryman: Q. Was this shipped on this rate? A. Yes, sir. Q. You say, Mr. Jacobs, in your experience as an agent you never knew of a shipper giving a greater valuation than $100; that they always preferred to ship at the lower rate? A. I don't know of a single instance where they valued it over $100. Q. Suppose they had declined to ship at a valuation of $100, and said the horse was worth more than $100, what would you have done? A. We would charge extra rate charges accordingly."

The...