Missouri, K. & T. Ry. Co. of Texas v. Patrick

• Decision Date: 28 March 1906
• Docket Number: 2,292.
• Citation: 144 F. 632
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. PATRICK.
• Court: U.S. Court of Appeals — Eighth Circuit

144 F. 632

MISSOURI, K. & T. RY. CO. OF TEXAS v. PATRICK.

No. 2,292.

United States Court of Appeals, Eighth Circuit.

March 28, 1906

Clifford L. Jackson, for plaintiff in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge.

Defendant in error, who was plaintiff below, delivered to defendant's station agent at South Canadian two boxes of goods to be carried to Durant, Ind. T. On delivery of the boxes, plaintiff, who was acting through his wife as agent requested a bill of lading. The station agent gave him what purported to be one, fixing the terms and conditions of shipment, but neglected to sign it. By its provisions plaintiff, in consideration of a reduction of about 33 per cent. from the regular freight rate to Durant, stipulated to release the railroad from liability for all loss, except $5 for each hundred pounds of goods carried. The reduced rate of freight was paid, but the goods were never carried to Durant, but were lost. Plaintiff, ignoring the stipulation for limited liability, sued the railroad company in a trial court of the Indian Territory for the full value of the goods. He filed his supposed bill of lading, with his petition, as the contract sued on, and, at the trial which followed, offered it in evidence to prove his right of recovery. Judgment was rendered in his favor for the actual value of the goods $60.40, and an appeal was taken to the United States Court of Appeals in the Indian Territory, where the judgment of the lower court was affirmed. The limitation of the amount of recovery for the loss, as specified in the contract, was held by the latter court to be invalid, and the common-law liability was held to attach for the full value of the goods lost because the bill of lading, or contract, was unsigned. A writ of error taken from this court raises the single question whether the contract as made limits plaintiff's right of recovery to $5 per hundredweight of the goods shipped.

The United States Court of Appeals for the Indian Territory, in the course of its opinion, says:

'But the paper issued and denominated a bill of lading in the case at bar was never signed by the carrier, and by reason of that fact it was not a bill of lading, and consequently the pretended limitation of liability stated therein was not binding on the appellee, and none of its provisions were binding on either the carrier or the shipper. Therefore there is no evidence that any verbal or written contract was made between the parties, limiting the common-law liability of the carrier.'

For want of the signature of the defendant's agent the paper sued on was not a bill of lading, nor in itself a contract. This may be conceded, but the concession does not dispose of the case. Neither the bill of lading nor any written contract were necessary to constitute a contract of shipment It may be orally made, and when so made, in the absence of fraud or imposition, it is as obligatory upon both the shipper and carrier as a written one. The difficulty generally arises in establishing its terms by parol, but, when once established, it determines the rights and obligations of the parties, except as affected by statutory law, as conclusively as if it had been in writing and in the accepted form of a negotiable bill of lading. Elliott on Railroads, vol. 4, Sec. 1503; Hutchinson on Carriers, Sec. 242; Railway Co. v. Jurey, 111 U.S. 584, 4 Sup.Ct. 566, 28 L.Ed. 527, and cases cited.

The paper sued on, in our opinion, was very satisfactory evidence of the contract of shipment as actually made. Something was asked by the shipper's agent, expressing the obligation of the carrier, and, pursuant to her request, the paper in question was given her. She forthwith delivered it to her husband, who used it in making a claim for compensation for his loss; filed it as an exhibit in the case showing his contract with defendant; and offered it in evidence at the trial to substantiate his right. More than this, he took the benefit of the low rate of freight specified in the paper. He paid only two-thirds of the established rate for unlimited common-law liability. If the station agent, instead of...