McElvain v. St. Louis & San Francisco Railroad Company
| Decision Date | 10 November 1910 |
| Citation | 131 S.W. 736,151 Mo.App. 126 |
| Parties | JERRE McELVAIN, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED (and certified to the Supreme Court.)
Judgment reversed and cause remanded. Case certified to the Supreme Court.
W. F Evans and Moses Whybark for appellant.
(1) The court erred in refusing instruction No. 5 asked for by defendant. That instruction under the evidence is the law. The plaintiff executed the contract pleaded and offered in evidence in consideration of a reduced rate, which was shown both by the contract and the evidence adduced at the trial. He gave no notice and he was barred by his contract from recovering. Shelton v. Railroad, 131 Mo.App. 560; Ward v. Railroad, 158 Mo. 226; Freeman & Hinson v. Railroad, 118 Mo.App. 527; Meriwether v Railroad, 128 Mo.App. 647; Aull v. Railroad, 136 Mo.App. 379; Burgher v. Railroad, 120 S.W. 673; Mires v. Railroad, 134 Mo.App. 379; Libby v Railroad, 137 Mo.App. 276; George v. Railroad, 214 Mo. 551; Rice v. Railroad, 63 Mo. 314; Dawson v. Railroad, 76 Mo. 514; The Queen of the Pacific, 180 U.S. 58; Moore v. Railroad, 127 S.W. 92. (2) He received a reduced rate which was a consideration for the contract and this was proved by the contract and the testimony of Mr. McKnight, the station agent. Parol evidence is admissible to show the consideration for a reduced rate. Burgher v. Railroad, 120 S.W. 673.
Ward & Collins for respondent.
(1) Defendant can't limit its common law liability for negligence. Botts v. Railroad, 106 Mo. 397; Davis v. Railroad, 122 Mo.App. 637; Fulbright v. Railroad, 118 Mo.App. 482; Dawson v. Railroad, 79 Mo. 296. (2) And such contract limiting liability except for negligence, must have a consideration. Keyes-Marshal Co. v. Railroad, 113 Mo.App. 144; Paddock v. Railroad, 60 Mo.App. 328. (3) It was incumbent on the appellant to prove that Sparks Brothers Mule Company was the agent of plaintiff and authorized to make this contract. Bonner v. Lesenby, 86 Mo.App. 666; Christain v. Smith, 85 Mo.App. 117. (4) Appellant must show that the Sparks Mule Company had previous authorization to make this contract or a subsequent ratification by plaintiff. Hoppe v. Sailer, 53 Mo.App. 4; Boyle v. Railroad, 13 Mo.App. 574. (5) In the absence of fixed rates in dollars and cents, for freight on the shipment being specified in the contract of shipment, the rate to be charged was the customary rate, such as were fixed by the schedules showing the rate for freight and is not a reduced rate. Kellerman v. Railroad, 136 Mo. 188; George v. Railroad, 214 Mo. 554; Hancock v. Railroad, 131 Mo.App. 407; Borings v. Railroad, 90 Mo.App. 333; Ficklin Bros. v. Railroad, 115 Mo.App. 637; Davis v. Railroad, 122 Mo.App. 637; Fickland v. Railroad, 117 Mo.App. 211. (6) Said contract did not state any rate, but left it in blank as follows, "At the rate of --- per ---, said rate being special rate, etc." These blanks in this alleged contract not being filled, there is no rate specified. George v. Railroad, 214 Mo. 554; Kellerman v. Railroad, 136 Mo. 188; Hancock v. Railroad, 131 Mo.App. 407.
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 one thousand dollars based upon the common law liability of the appellant in failing to deliver a carload 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 Stock Yards in East St. Louis, Illinois, one carload of mules in good condition and valued at five thousand dollars, which said carload 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, Missouri, within a reasonable time; that the distance was two hundred and twenty miles, and that twenty 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 twenty 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 forty-eight 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 one thousand dollars."
The answer admitted that the respondent delivered to appellant the carload 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, wherein the value of the mules was fixed at one hundred dollars each, which valuation was fixed for the purpose of securing a reduced rate of freight on the shipment; that the appellant had two rates on live stock; that one was a rate based on a valuation declared by the shipper limiting the liability of the carrier to a certain sum in order to secure the reduced rate. The answer also set up the provision of said contract that as a condition precedent to recovery for any damages for delay, loss or injury to the mules, the plaintiff would give notice in writing of his claim therefor to some general officer or the nearest station agent of the defendant, or to the agent at destination, or some general officer of the delivering line, before the mules were removed from the place of destination, and before they were mingled with other stock, and that such written notice should be served within one day after the delivery of the mules at the point of destination, to the end that his claim could be investigated; and that failure to comply with this provision of the contract should operate to bar his recovery of all claims; and the defendant averred that plaintiff failed to comply with said provision of the contract. That plaintiff in making the contract expressly acknowledged that he had the option of moving his shipment under the tariff rate either at the risk of defendant, or upon a limited liability, and that he selected the limited liability to secure the reduced rate, and agreed to all stipulations and conditions named in the contract; that no agent, under the terms of the contract, had any authority to waive, modify or amend any provisions therein.
For replication, the plaintiff denied under oath the execution of the contract, and averred that no contract was made by him which in any way limited the common law liability of the defendant.
At the trial, the plaintiff offered evidence tending to support the allegations of his petition. It was shown that he shipped the carload of mules over the defendant's line of railroad from East St. Louis to Caruthersville, a distance of two hundred and twenty miles, and there was evidence tending to show that twenty hours was a reasonable time for such transportation in the usual course of business; that through the defendant's negligence it took forty-eight hours to complete the shipment to Caruthersville, and that such time was an unreasonable delay; that by reason of such negligence and delay, the mules were maimed, injured and wounded. The carload of stock reached Hayti, six miles from Caruthersville, at 4:50 p. m. on December 18th, having been in transit at that time twenty-six hours and fifty minutes; that said stock instead of being brought on to Caruthersville was unloaded at Hayti and was not brought on to Caruthersville, according to plaintiff's testimony, until the next day at 3:00 p. m.; but according to defendant's evidence, they reached Caruthersville at 9:55 a. m. on the 19th. However, when the mules were unloaded at Caruthersville, they were in bad condition. All, or most of them, had a serious cold and running at the nose, and were skinned, bruised, wornout, drawn, cramped, tired and otherwise in bad shape by reason of the long delay in transit and the manner in which they were transported.
The plaintiff, during his testimony, stated that he had bought the twenty-eight mules of Sparks Bros. in East St. Louis, and left them with Sparks Bros. for shipment, plaintiff coming away; that Sparks Bros. asked him what road he wanted them shipped over and he told them the St. Louis & San Francisco Railroad Company; that the same firm had shipped mules for him several times during a period of ten years, and that they did the directing of the car; that plaintiff had nothing to do with that; that after he made his order, he told Sparks Bros. over what route he wanted the mules shipped and trusted Sparks Bros. to ship them out. He says that he did not give the railroad company notice of his intention to claim damages as provided in the contract.
At the trial, the contract of affreightment was introduced in evidence, and is in part, as follows:
ST. LOUIS AND SAN FRANCISCO RAILROAD COMPANY.
READ THIS CONTRACT CAREFULLY, AS NUMEROUS CHANGES HAVE BEEN MADE.
Notice.
THIS COMPANY HAS TWO RATES ON LIVE STOCK.
Shippers of Live Stock will take notice that rates of freight, and the extent of...
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