Maloney v. The Missouri Pacific Railway Company

• Decision Date: 24 May 1894
• Citation: 26 S.W. 702,122 Mo. 106
• Parties: Maloney v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

26 S.W. 702

122 Mo. 106

Maloney v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri, Second Division

May 24, 1894

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Elijah Robinson for appellant.

(1) That the defendant, as a common carrier, could, by contract lawfully limit its liability, is now too well settled to admit of controversy. McFadden v. Railroad, 92 Mo 343; Rice v. Railroad, 63 Mo. 314; Snyder v Adams Express Co., 63 Mo. 376; Ball v. Railroad, 83 Mo. 574; Railroad v. Cleary, 77 Mo. 634; O'Bryan v. Kinney, 74 Mo. 125; Brown v. Railroad, 18 Mo.App. 568; Hart v. Railroad, 112 U.S. 331. (2) Plaintiff accepted the bills of lading containing conditions limiting the liability of defendant, and he is bound by those conditions. Whether he read them is entirely immaterial. Snyder v. Adams Express Co., 63 Mo. 376; Railroad v. Cleary, 77 Mo. 634; O'Bryan v. Kinney, 74 Mo. 125; Grace v. Adams, 100 Mass. 507; Belger v. Dinsmore, 51 N.Y. 166; Long v. Railroad, 50 N.Y. 76; Mulligan v. Railroad, 36 Iowa 181; McMillan v. Railroad, 16 Mich. 79. (3) The defendant gave to plaintiff reduced rates, which was a sufficient consideration for the contract limiting defendant's common law liability. (4) The fact that the name of the plaintiff was signed to the contracts by defendant's station agent, does not deprive the contracts of their validity, or in any way impair their legal force and effect. Plaintiff accepted these contracts, and it was not necessary that his name should have been signed to them at all. Snyder v. Adams Express Co., 63 Mo. 376; O'Bryan v. Kinney, 74 Mo. 125; Long v. Railroad, 50 N.Y. 76; Belger v. Adams Express Co., 51 N.Y. 166; Grace v. Adams, 100 Mass. 507. (5) The property in controversy having been destroyed by fire, and there being no evidence of negligence whatever on the part of the defendant, the finding of the referee and the judgment of the trial court should have been for defendant. (6) The plaintiff did not serve notice of the loss as provided by the terms of the bills of lading. (7) By the terms of the bills of lading the valuation of the property was limited to five dollars per hundred weight. There was no evidence as to the weight, and consequently no evidence upon which to base the finding of the referee as to the valuation. (8) A considerable portion of the property was shown to belong to persons other than plaintiff. He could not maintain suit for this property, except as the trustee of an express trust, resulting from the terms of the contracts delivered to him by the defendant. (9) The plaintiff's wife was not a competent witness. The admission of her testimony was prejudicial to defendant.

J. M. Callahan and C. F. Moulton for respondent.

(1) The exceptions to the report of the referee were not filed within four days after the filing of the report. R. S. 1889, sec. 2154; Brown v. Wall, 113 Mo. 46; Renicke v. Jod, 56 Mo. 386; Gaston v. Kellogg, 91 Mo. 109. (2) The motions for new trial and in arrest, were not filed within four days after the trial of the cause. R. S. 1889, sec. 2243; Cattell v. Co., 88 Mo. 360; Ballinger v. Carrier, 79 Mo. 318; State v. Brooks, 92 Mo. 591; Gaston v. Kellogg, supra; Beckmann v. Ins. Co., 49 Mo.App. 604; State v. Arnold, 54 Mo.App. 601. (3) The appeal is without merit, and ten per cent. damages should be awarded. Phillips v. Phillips, 107 Mo. 364; Shackly v. Co., 50 Mo. 410; Bonnell v. Co., 45 Mo. 422; Banistis v. Henn, 45 Mo. 566. (4) This is an action at law, sounding in damages, and referred by consent. All the facts in the case sustain the finding of the referee and of the court. When this is done the finding will not be disturbed. Bank v. Ins. Co., 97 Mo. 38; Co. v. Fitzwilliams, 84 Mo. 406; Gaston v. Kellogg, 91 Mo. 109; Vogt v. Butler, 105 Mo. 485. (5) Plaintiff, in an action for damages, is not required to plead contract of exemption where such exists. Clark v. Railroad, 64 Mo. 440. The petition alleges the delivery and loss of the goods and that is sufficient. McFadden v. Railroad, 92 Mo. 343. The goods were shipped by plaintiff under one contract and consigned to him and this fact gave him a cause of action. Wolfe v. Railroad, 97 Mo. 473. (6) The exceptions are void. They are vague and indefinite. Hornblower v. Crandall, 7 Mo.App. 220; S. C., 78 Mo. 581; Co. v. Givens, 36 Mo.App. 610. (7) The evidence discloses negligence on the part of the defendant, and against the result of which the carrier could not contract. McFadden v. Railroad, 92 Mo. 348. He is liable for injuries sustained in consequence of the want of due diligence. Clark v. Railroad, 64 Mo. 447. (8) The referee and court found, from all the evidence, that no contract was made exempting defendant from its common law liability. And in no manner was that finding complained of in defendant's exceptions to the referee's report. The legal effect of this was to remit defendant back to its common law liability. This court in Green v. Cole, 103 Mo. 70, held that "the minds of the parties to constitute a contract must assent to the same thing in the same way." (9) The record discloses that the trial court decided the case on the testimony reported by the referee. Pomeroy v. Benton, 77 Mo. 64, and the report of the referee, in an action at law is equivalent to a special verdict, and will not be disturbed by the supreme court, if there is evidence to support it. Vogt v. Butler, 105 Mo. supra. The alleged special contract disposed of, the liability of defendant must be conceded. Reed v. Railroad, 60 Mo. 199; and this regardless of whether the appellant was or not guilty of negligence. Davis v. Railroad, 89 Mo. 340.

OPINION

Burgess, J.

This is an action by plaintiff against the defendant as common carrier for damages for the loss of household goods by fire by reason of the negligence of defendant while in transit over its road from Harrisonville to Independence, Missouri. Upon issue joined, by consent of the parties plaintiff and defendant, John A. Sea was appointed referee to examine the account and make report. On the ninth day of March, 1891, the referee filed his report.

On March 11, 1891, defendant filed exceptions to the report of the referee as follows:

"Comes now defendant and makes the following exceptions and objections to the report of the referee filed herein; and defendant says: First. That said report is against the law (in that the amount allowed plaintiff is not the lawful and true amount that the defendant, if liable, ought to pay plaintiff). Second. That it is against the evidence and the law under the evidence. Third. That the referee erred in rejecting testimony offered by defendant. Fourth. That the referee erred in admitting testimony offered by plaintiff. Fifth. That the plaintiff by requesting his name signed to the bill of lading or contracts in evidence, and by accepting duplicates thereof, and claiming and receiving benefits thereunder, became, was and is firmly bound by the terms and conditions thereof, as if the same and each of them had been read and explained to him before the same were signed. Sixth. That under the facts in evidence, the burden of proof is on plaintiff to show such negligence upon the part of defendant before plaintiff could be entitled to a recovery, and that such proof was not made in said cause. Seventh. That the referee erred in finding the defendant liable to this plaintiff for goods which the petition and evidence showed were the property of Rosa Crawford and Maggie Barton. Eighth. That under the facts found by the referee, his conclusion should have been that the defendant was not liable for, or on account of, the loss of any part of the property mentioned. Ninth. That the finding of the referee is against the weight of the evidence. Tenth. That the referee erred in his conclusions as to what the evidence introduced tended to prove."

On the same day defendant filed its motion for judgment, which is as follows: "Comes now said defendant and moves the court for a judgment in its favor, upon the report of the referee herein filed for the reasons: First. That upon the facts found in said report, the finding of the referee should have been in favor of the defendant instead of the plaintiff. Second. That upon the facts found by the referee, as the same are stated in said report, the judgment of this court should be for the defendant. Third. That the facts found by the referee, under the law of this case, are not consistent with the findings of facts therein stated."

On April 10, 1891, exception number 1 to the referee's report was sustained. On September 15, 1891, the case was again referred to the referee with instructions to take such additional evidence touching the value of the property alleged to have been destroyed as might be introduced by either party and to report his finding to the court.

The referee, after having heard the evidence as to the value of the goods destroyed in obedience to the order of the court, made his report November 7, 1891. Court adjourned on the same day to the twenty-first day of November next thereafter when it again adjourned to December 19, 1891. On December 19, 1891, defendant filed its exceptions to the report of the referee:

"Now comes said defendant and excepts to the report of the referee filed herein, of the seventh day of November, 1891, and says that said report is contrary to the weight of evidence in the case, and is in fact without any evidence to support it; that the amount of the finding of the referee is excessive, no such amount being warranted by the evidence in the case, and that the conclusion of the referee, namely, that plaintiff was entitled to recover, is contrary to the law, and against the weight of evidence."

On the same day, the ...