Rice v. Kansas Pacific Ry.

• Decision Date: 31 October 1876
• Citation: 63 Mo. 314
• Parties: ELISHA C. RICE, Plaintiff in Error, v. THE KANSAS PACIFIC RAILWAY, Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 314

ELISHA C. RICE, Plaintiff in Error,

v.THE KANSAS PACIFIC RAILWAY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Jackson County Circuit Court.

F. W. Black, for Plaintiff in Error.

I. The rule is well settled that a common carrier cannot stipulate for exemption from responsibility for the negligence of himself or servants. Such contracts are void. (Railroad Co. vs. Lockwood, 17 Wal. 357; Levering vs. Union Trans. & Ins. Co., 42 Mo. 89; Wolf vs. Adam's Ex. Co., 43 Mo. 421; Ketchum vs. Am. Ex. Co., 52 Mo. 390; Read vs. St. L., K. C. & N. Mo. R. R., 60 Mo. 199.)

II. The provision in the contract, to-wit: “No claims for loss or damage on live stock will be allowed, unless the same is made in writing before or at the time the stock is unloaded,” if it be literally construed, is unreasonable and void, and but an evasion of the general well settled rule. (Adam's Exp. Co. vs. Reagan, 29 Ind. 21; Southern Exp. Co. vs. Carpenter, 44 Ala. 101.)

III. In the case of Express Co. vs. Caldwell (21 Wal. 264), the agreement allowed ninety days from the delivery of the parcel to the company within which the claims might be made. And the court places its decisions upon the ground, that the limitation of the defendant's common law liability was a reasonable one.

In Goggin vs. K. P. Rly. Co., 12 Kas. 416, no claim was made in writing for more than a year after the cattle were unloaded, and it is there said: “But such a contract should be reasonable and not such as to be a snare or fraud upon the public.” And under the circumstances of the case at bar, the claim was made in a reasonable time. Any further requirements must be held void, and unjust and unreasonable.

IV. There was evidence tending to prove the allegations made in the petition, and the court had no right to withdraw the case from the jury.

V. The petition alleges facts, sustained by the evidence, showing a waiver of notice in writing. It also tends to show that there was no agent at Kansas City who had authority to receive such notice.

Pratt, Brumback & Ferrey, for Defendant in Error.

I. The clause of the contract, that “no claim for loss or damage on live stock will be allowed unless the same is made in writing before or at the time the stock is unloaded,” was valid and binding upon the parties.

The claim was not unreasonable or contrary to public policy. The evident object of it was to prevent false or exaggerated claims against the railway company, by requiring that they should have notice before or at the time the cattle were unloaded from the cars, in order that the company might have an inspection of the cattle before they were removed or mingled with others. Otherwise the cattle claimed to be injured might be slaughtered, or forwarded to other markets and scattered, before any claim was made, and thus the railway company be deprived of any opportunity of examining for themselves as to the extent of the injury, if any. (See Goggin vs. Kas. Pac. R'y Co., 12 Kas. 416.)

Nor was it an attempt to relieve the railway company from liability for its negligence, but simply a requirement that the shipper on his part should perform certain duties on condition of the special rates given to him. Such requirement is both reasonable and valid. (Bankard vs. B. & O. R. R., 34 Md. 197; Wolf vs. W. U. Tel. Co., 62 Penn. [St.] 83; Trask vs. Ins. Co., 29 Penn. [St.] 198; Cornell vs. Ins. Co., 18 Wis. 387; Express Co. vs. Caldwell, 21 Wal. 264.)

II. There is no legal evidence of any written notice ever having been given to respondent of appellant's claim, until the bringing of the suit.

Appellant wholly failed, by his own testimony, to show any excuse whatever for not giving the written notice of his claim to respondent, at the time of unloading the cattle--at least before removing them sixteen miles away. He testifies that they arrived at Kansas City at 11 o'clock p. m. of the night of the 15th; that an agent of respondent was there; that the cattle were unloaded by 2 o'clock a. m. that night; that he then went to bed at State Line House and slept till morning; that he then got some horses, took his cattle out and drove them to his farm sixteen miles away; that a clerk of respondent was present at the time the cattle were unloaded and checked them out; that he did not go to the respondent's office that night or the next morning, and that he never attempted to give any written notice till his return on Wednesday, three days afterward.

NORTON, Judge, delivered the opinion of the court.

This was a suit brought in the circuit court of Jackson county, for the recovery of damages to plaintiff's cattle, alleged to have been occasioned by the negligence of defendant, in its shipment of them, as a common carrier.

The petition states, in substance, that defendant received of plaintiff, for transportation, two hundred and fifty head of cattle, under a contract in which was the following stipulation: “No claim for loss or damage on live stock will be allowed unless the same is made in writing, before or at the time the stock is unloaded.” It states that the cars, by neglect of defendant, were thrown off the track and three of the cattle killed and the remainder injured, and their transportation delayed seventeen hours; that from the time of the accident till the train started, the whole of plaintiff's time was engaged in getting the cattle, that were thrown down, in the cars, up on their feet; that when the cattle were unloaded plaintiff was required to assist in unloading them, and that he had no time or opportunity to make written claim for damages sooner than was done by him; that said written claim for damages was made two days after the unloading; that defendant had no agent at State Line Station, to which place the cattle were shipped, to whom he could give his written claim.

The answer of defendant denies all the material allegations of the petition, and sets out at length the contract containing the stipulation as to claim for damages above quoted, and alleges that plaintiff did not give the notice required. Plaintiff filed his replication denying the allegations of the answer.

On the trial a demurrer to the evidence of plaintiff was sustained, whereupon he took a non-suit with leave to move to set the same aside. The motion of plaintiff to set aside the non-suit and grant a new trial was overruled, and final judgment entered, from which the plaintiff has appealed.

It is insisted by the plaintiff's counsel that the court erred in its action, first, because the stipulation that “no claim for loss or damage on live stock will be allowed unless the same is made in writing, before or at the time the stock is unloaded,” was unreasonable and void; second, that the evidence offered showed a substantial compliance with the contract, and waiver as to the time in which the notice was to be given.

The rigid and severe rules of the common law, which held common carriers liable as insurers, and responsible for all loss to articles confided to them for shipment, unless such loss was occasioned by the act of God, or a public enemy, have been so far modified by an unbroken line of decisions as to allow carriers to limit their responsibility by special contract with their employers, provided such contract does not attempt to relieve him from liability for losses incurred by their negligence or misconduct. It is too late to inquire into the policy or impolicy of this infringement on the rules of the common law. It is the established law, and is so understood by those engaged in the business of common carriers and those who patronize them, and sound policy requires it to be adhered to. (Ketchum vs. American Express Co. 52 Mo. 390; Levering vs. Union Trans. & Ins. Co., 42 Mo. 89; Reid vs. St. L., K. C. & N. R. R. Co., 60 Mo. 199.) It has also been held that stipulations, such as the one in question, do not contravene the rule that a common carrier cannot exempt himself, by contract, from liability for losses occasioned by his negligence, but that they are valid and binding between the contracting parties, provided they are reasonable and just. (Express Co. vs. Caldwell, 21 Wall. 264.)

When the fact is considered that cattle, when shipped, upon reaching their destination are usually...