Oxley v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1877
• Citation: 65 Mo. 629
• Parties: OXLEY v. ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 629

OXLEY

v.ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY CO., APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Montgomery Circuit Court.--HON. G. PORTER, Judge.

Wells H. Blodgett for appellant, cited, in addition to the authorities quoted by the court, Lewis v. Great Western R. R. Co., 5 Hurl. & Norm. 865; Express Co. v. Caldwell, 21 Wall. 264.

S. Carkener & R. H. Mansfield for respondent.

1. The petition in this case is based on an alleged breach of defendant's public duty as a common carrier--sounds in tort, for negligence, against which defendant can not contract. Such being the case, the alleged special contract was irrelevant and was properly stricken out of the answer. Levering v. Union Transfer Co. 42 Mo. 88; Union Railway Co. v. Traube, 59 Mo. 355; Clark v. St. L. K. C. & N. R. R. Co. 64 Mo. 440; Ketchum v. A. M. U. Ex. Co. 52 Mo. 390; Wolf v. A. Ex. Co. 43 Mo. 421; Read v. St. L. K. C. & N. Ry. Co. 60 Mo. 199.

2. This contract attempts to totally exempt defendant from liability on account of all such matters as are made the basis of this suit. So plaintiff can have no action under the contract. If he has one, it must be outside of and in spite of it. Hence it was not properly pleaded, with respect to plaintiff's obligation under the contract, to take care of the stock, or make his claim for damages within three days. These obligations could affect only a suit brought under the contract. Welch v. B. & A. Ry. Co. 41 Conn. 333; Bartlett v. W. U. Tel. Co. 62 Maine 209.

3. The court properly admitted evidence of the statements of defendant's general freight agent, made when plaintiff made demand for loss of his mule. They are the acts of the defendant. Malecek v. Tower Grove Ry. Co. 57 Mo. 17; Northrup v. Miss. V. Ins. Co. 47 Mo. 435; Franklin v. Atlantic Ins. Co. 42 Mo. 456.

NORTON, J.

It is alleged in plaintiff's petition that in February, 1875, he delivered to the defendant twenty-one mules and one horse, to be carried from Wentzville to St. Louis; that by the negligence and carelessness of the defendant, one of said mules escaped or was stolen from the car while being transported, and was entirely lost to plaintiff. The allegations of the petition were denied in defendant's answer, and a special contract between the plaintiff and defendant was set up therein by way of defense, containing among others, in substance, the following stipulation: That the plaintiff should go with and take care of said freight while on the trip, and load and unload the same at his own risk and expense; that the defendant should not be responsible for any loss, damage or injury which might happen to said freight in loading, forwarding or unloading, by suffocation or other injury caused by overloading cars, or by escapes from any cause whatever; that defendant should be deemed merely a forwarder, and not a common carrier, and that it should be liable only for such loss, damage or destruction of the freight as might be caused by its gross negligence; that plaintiff agreed to assume all risk of damage or injury to, or escape of, the live stock which might happen to them while in the stock-yards awaiting shipment; and that any claim for damages that might accrue to him under said contract, should be made in writing to the general freight agent of the defendant within three days from the time the live stock should be unloaded or delivered at the point of destination on the route of defendant. Defendant averred performance on its part, and then charged a failure of plaintiff to keep and perform the conditions of said contract on his part, in the following particulars, to-wit: 1st. That plaintiff went free of charge with stock to St. Louis; but to take care of the same while on said trip he wholly failed and refused. 2nd. That to make a claim in writing for any damage that might have accrued to him under said contract to the general freight agent of defendant, within three days after said livestock was unloaded at said city of St. Louis, he wholly failed and refused, &c.

So much of defendants answer as set forth the above special agreement, was on plaintiff's motion stricken out, on the ground that it constituted no defense to the action. This ruling of the court was excepted to by defendant at the time, and is relied upon here as the principal reason for a reversal of the judgment.

Upon the trial, the evidence tended to show that plaintiff, without paying any fare, accompanied the train to take care of his stock; that when the mules were loaded, the car door was closed and fastened with a wooden pin passed through a staple, and holding a clasp attached to the door; that plaintiff requested defendant's agent to seal the car, but that he failed to do it; that when the train arrived at St. Louis, the car contained but twenty mules and one horse, but as to how, or when, or where one mule had escaped, or been removed from said car, the evidence did not disclose. The court permitted the plaintiff to give in evidence, a conversation had with...