McElvain v. St. Louis & S. F. R. Co.

• Decision Date: 10 November 1910
• Citation: 151 Mo. App. 126,131 S.W. 736
• Court: Missouri Court of Appeals
• Parties: McELVAIN v. ST. LOUIS & S. F. R. CO.

131 S.W. 736

151 Mo. App. 126

McELVAIN v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

November 10, 1910.

1. PRINCIPAL AND AGENT (§ 101)—AGENT'S AUTHORITY — SCOPE — CONTRACTS OF CARRIAGE.

When an agent is intrusted to deliver goods to a carrier, he is presumed to have authority to make and carry into effect necessary contracts for shipment, including routing and terms and limitation of the carrier's strict common-law liability.

2. PRINCIPAL AND AGENT (§ 101)—AGENT'S AUTHORITY — SCOPE — CONTRACTS OF CARRIAGE.

A seller directed by the buyer to ship live stock could agree to limit the carrier's liability, and could agree that notice of claim for injury to the shipment before removal from the place of destination and before mingling with other stock should be a condition precedent to the carrier's liability.

3. CARRIERS (§ 159)—RATES—REQUIREMENTS BY CARRIER—REASONABLENESS.

It is not an unreasonable condition in a shipper's contract that he be required as a condition precedent to the carrier's liability to give notice of his claim.

4. PRINCIPAL AND AGENT (§ 126)—EXECUTION OF WRITTEN CONTRACTS—DELIVERY TO PRINCIPAL.

Provision in a contract to carry live stock made for the shipper by an agent requiring notice of claim for injury before removal of the stock from the place of destination, and before mingling with other stock, as a condition precedent to the carrier's liability, binds the shipper, though the agent did not forward the contract before the shipment arrived.

5. PRINCIPAL AND AGENT (§ 177)—NOTICE TO AGENT—EFFECT.

Notice to a live stock shipper's agent was notice to the shipper.

6. PRINCIPAL AND AGENT (§ 177)—NOTICE TO AGENT AS NOTICE TO PRINCIPAL.

A principal is charged with implied knowledge of such facts as are within the agent's knowledge in the particular business intrusted to the agent.

7. COURTS (§ 91) — SUPREME COURT DECISIONS—CONCLUSIVENESS.

Supreme Court decisions conclude the Court of Appeals.

8. CARRIERS (§ 154)—COMMON-LAW LIABILITY—LIMITATION— CONSIDERATION.

Mere agreement for transportation between parties to a shipment will not support an agreement to limit the carrier's common-law liability; an independent consideration such as a reduced rate being necessary.

9. EVIDENCE (§ 383)—RECITALS IN CONTRACT FOR SHIPMENT—CONCLUSIVENESS.

Any statement in a contract for shipment is an admission of the facts stated, and, in the absence of countervailing facts, is conclusive; admissions in such contracts having the same effect as those of ordinary contracts.

10. EVIDENCE (§ 353) — RECITALS IN CONTRACTS AS EVIDENCE OF CONSIDERATION.

A shipper's contract may recite that it was made for a consideration, and such recital is competent evidence of a consideration.

11. EVIDENCE (§ 383) — RECITALS IN CONTRACT FOR SHIPMENT—CONCLUSIVENESS.

The recital of a reduced rate in a shipper's contract is prima facie evidence of that fact,

and may support a verdict when nothing to the contrary appears on the face of the contract.

12. COURTS (§ 97)—FEDERAL QUESTIONS—DETERMINATION BY FEDERAL COURTS AS BINDING STATE COURTS.

State courts are bound by federal decisions on federal questions.

13. COURTS (§ 97)—DECISIONS OF FEDERAL COURTS AS AUTHORITY IN STATE COURTS.

A shipper's contract for reduced rates not being affected by the Hepburn act (Act June 29, 1906, c. 3591, 34 Stat. 584 [U. S. Comp. St. Supp. 1909, p. 1149]), no federal question and no federal rights arise under any such contract, and hence the state courts are free to apply their own rules to its construction.

14. CARRIERS (§ 189) — CONTRACT OF SHIPMENT—RATES OF FREIGHT—"TARIFF RATE."

When a shipper's contract recites that the rate charged is the "tariff rate," it is to be construed as the highest rate a carrier can charge, and such a recital will control over a recital that the rate was less than the rate charged for shipments at the carrier's risk.

15. CARRIERS (§ 228)—CONTRACTS FOR SHIPMENT—EXISTENCE OF SEVERAL RATES—EVIDENCE—WEIGHT.

Weight of the evidence in an action on a live stock shipment contract held to show that the carrier had more than one rate in force, as bearing on the question of consideration for a contract limiting liability.

16. CARRIERS (§ 218) — CARRIAGE OF LIVE STOCK—LIMITATION OF LIABILITY—CONSIDERATION.

A written application to a carrier for shipment of live stock at a reduced valuation in consideration of a reduced rate, followed by the carrier's signed acceptance of the shipment at such valuation, and followed by an agreement for the transportation, all written on the same piece of paper, constituted one contract supported by one consideration.

17. CARRIERS (§ 218) — LIVE STOCK—CONTRACTS FOR SHIPMENT—EXISTENCE OF DIFFERENT RATES.

In an action by a shipper under a contract to carry live stock, reported to have been made at a reduced rate in consideration of a reduced valuation, it could be shown that there was only one rate, and hence no reduced rate.

18. COMMERCE (§ 3)—INTERSTATE COMMERCE— EFFECT ON STATES.

The interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) is a part of the law of the state of Missouri and enforceable in its courts when rights under it arise as incidents of a trial.

19. COMMERCE (§ 10)—INTERSTATE COMMERCE —COMMON-LAW RIGHTS.

An interstate carrier can exercise all its rights under the common law to the full extent, unless made unlawful by the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]).

20. CARRIERS (§ 180) — FREIGHT — CARRIER'S LIABILITY.

Interstate Commerce Act (Act Feb. 4, 1887, c. 104. § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169], as amended by Act Cong. June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1909, p. 1166]), prohibiting contracts exempting carriers from liability for loss on a connecting line, does not prevent an agreement limiting a carrier's liability to an agreed valuation in consideration for a reduced rate.

21. EVIDENCE (§ 429)—PAROL EVIDENCE—INVALIDATING WRITING.

Though a shipper's contract be clearly unambiguous and prima facie what it purports to be, the question whether it was made understandingly for the purpose stated must be determined from the facts and circumstances surrounding its execution.

22. EVIDENCE (§ 429)—PAROL EVIDENCE—INVALIDATING WRITING.

To show that a shipper did not assent to the terms of a contract of carriage, extrinsic evidence is admissible not to contradict its express terms, but to show whether it was actually entered into.

23. CARRIERS (§§ 147, 155)—CONTRACTS FOR SHIPMENT—LIMITATION OF LIABILITY—NECESSITY FOR SHIPPER'S ASSENT.

A carrier's liability cannot be limited without the shipper's assent, nor unless it is reasonable.

24. CARRIERS (§ 162) — CONTRACT OF SHIPMENT—FRAUD IN INDUCING—PLEADING.

If a shipper suing a carrier claims that his signature to the contract, which includes a release pleaded by the carrier, was fraudulently and wrongfully procured, that issue should be attended by proper allegations in the reply as provided for by Rev. St. 1899, § 654 (Ann. St. 1906, p. 670).

25. CARRIERS (§ 154)—LIMITATION OF LIABILITY—CONSIDERATION.

If an agreed valuation was merely a cloak to limit liability to a sum less than the real value, the contract is not valid as against a loss due to negligence.

26. COURTS (§ 231) — JURISDICTION OF SUPREME COURT—CONFLICTING DECISIONS.

A decision of a Court of Appeals in conflict with decisions of the other courts of appeals is properly certified to the Supreme Court for its decision.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Jerre McElvain against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, and certified to Supreme Court.

W. F. Evans and Moses Whybark, for appellant. Ward & Collins, for respondent.

NIXON, P. J.

An opinion was heretofore rendered in this case, but, on motion, a rehearing was granted and the cause was reargued. This was an action for $1,000 based upon the common-law liability of the appellant in failing to deliver a car load of mules for the respondent within a reasonable time and in failing to transport said mules in a careful manner. The petition, so far as material, is as follows: "That on the 17th day of December, 1908, plaintiff delivered to defendant and defendant received at the National Stockyards in East St. Louis, Ill., one car load of mules in good condition and valued at $5,000, which said car load of mules defendant promised and agreed and then and there undertook, for and in consideration of certain freight charges paid, or to be paid to it, to well and safely carry, transport, and deliver said mules to plaintiff in as good condition as when received by defendant, and to deliver same to plaintiff at Caruthersville, Mo., within a reasonable time. That the distance was 220 miles, and that 20 hours was a reasonable time within which to transport said property, and that defendant, by the exercise of reasonable diligence, could and should have transported same within 20 hours, but plaintiff charges and avers that defendant, unmindful of its duty as a common carrier and of its agreement as aforesaid, so negligently and carelessly conducted itself in the premises that it did not complete said transportation until 48 hours after said mules were delivered to defendant and by it started en route for said transportation, and that it failed to carry said stock in a careful and safe manner, but negligently and carelessly bruised, wounded, and injured said mules, and all of them were skinned, maimed, and damaged in said transit, to the damage of plaintiff in the sum of $1,000."

The answer admitted that the respondent delivered to appellant the car load of mules as alleged in the petition, but denied all liability. Appellant also set up as a defense the contract of shipment entered into on December 17, 1908,...