Shelton v. St. Louis & S. F. R. Co.
| Decision Date | 12 May 1908 |
| Citation | 131 Mo. App. 560,110 S.W. 627 |
| Parties | SHELTON et al. v. ST. LOUIS & S. F. R. CO. |
| Court | Missouri Court of Appeals |
A contract for shipment of hogs recited that it was based on a reduced rate, that the rate mentioned therein was a reduced rate, and that in consideration of such reduced rate the stipulations therein contained were entered into. The application for the contract, signed by the shipper, recited that he knew that the carrier had two rates of freight, one a higher rate, on which it accepted shipments at the carrier's risk, and a lesser rate, under which shipments were made on the shipper relieving the carrier from specified common-law liabilities and agreeing to the limitations contained in the contract, and that the shipper had exercised his option and chosen the lesser rate. Held, that the contract was prima facie supported by a valid consideration, and the shipper, to avoid it, must show that no consideration was in fact given; since the rule is that, while a recital of a consideration in a contract of shipment is not conclusive evidence thereof, it is prima facie evidence.
3. EVIDENCE — OFFICIAL RECORDS — EXEMPLIFICATION — SUFFICIENCY.
Under Interstate Commerce Act June 29, 1906, c. 3591, § 5, 34 Stat. 590 (U. S. Comp. St. Supp. 1907, p. 902), providing that copies of schedules of rates, filed with the Interstate Commerce Commission as required by the act, shall be preserved as public records, and shall be received as prima facie evidence of what they purport to be, and copies of or extracts from any of such schedules, certified by the secretary of the Commission under seal, shall be received in evidence, a certificate under the hand and seal of the secretary of the Commission, which recites that a schedule filed by a carrier shows a specified rate on a designated article of commerce, is inadmissible, since it is a recital of a conclusion merely, and the schedules, or such portions thereof as are pertinent to the question in controversy, must be brought forward in connection with the certificate of the secretary, to the end that the court may determine the published rates.
4. CONTRACTS — STATEMENT OF CONSIDERATION — EFFECT.
A contract purporting a sufficient consideration on its face is conclusively supported by a consideration, in the absence of proof to the contrary.
Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.
Action by John D. Shelton and another against the St. Louis & San Francisco Railroad Company. From a judgment refusing to set aside a judgment of nonsuit, plaintiffs appeal. Affirmed.
Chas. L. Henson, for appellants. L. F. Parker, W. B. Skinner, and Woodruff & Mann, for respondent
This is a suit for damages, alleged to have accrued to plaintiffs because of the negligence of defendant, a common carrier, in transporting a car load of hogs from Mt. Vernon, Mo., to East St. Louis, Ill. The plaintiffs count upon the common-law liability of the defendant. The defendant pleads in bar a provision, contained in the contract of affreightment, to the effect that, unless notice of the loss was given to it within one day after the arrival of the shipment at destination, no suit or action could be maintained thereon. Plaintiffs concede executing the contract of shipment containing the stipulation referred to. It is likewise conceded that notice was not communicated to the defendant as required thereby. It is insisted by the plaintiff, however, that the stipulation in the contract relied upon by the defendant is invalid, for the reason it is without consideration.
The evidence introduced on behalf of the plaintiffs tended to prove that the shipment of hogs was made on September 11th, and the car started from Mt. Vernon about noon on that day, that in the usual course it should have arrived at the stockyards at East St. Louis within 18 hours, or before the opening of the market, at about 8:30 o'clock on September 12th, but, through the negligence of the defendant, the transportation was impeded, and about 27 or 28 hours were consumed in transit; the shipment arriving at the stockyards about 3:35 p. m. on September 12th. The market was closed at 3 o'clock on that day. Upon arrival, 8 of the hogs were found to be dead in the car, and a considerable loss on the remainder of the load was sustained, for the reason the market ranged 10 cents per hundredweight lower on the day of the sale than on the day before. Plaintiffs introduced in evidence the contract of affreightment under which the shipment was made, whereby the defendant undertook to transport the hogs between the points mentioned, at the rate of 26 cents per hundredweight. It is recited therein that this rate of 26 cents per hundred pounds is a special rate, and less than the rate charged for shipments transported by the defendant at the carrier's risk, with full common-law liability annexed, and that the stipulation with respect to the notice referred to is supported by the consideration of such reduced rate of freight. Annexed to this contract is an application signed by the plaintiffs, which recites substantially that plaintiffs had knowledge that defendant had two rates of freight for such shipments; that they exercised their option in that behalf, and applied for shipment at the reduced rate. In consideration whereof they were willing to forgive the full measure of defendant's common-law liability as a carrier, and accept the limitations thereon provided in the contract of affreightment applied for. This provision was accepted by defendant's agent, as appears from his signature, and the contract of shipment entered into and signed by the plaintiffs and defendant, as above indicated. At the conclusion of all the evidence on the part of plaintiffs the court directed a verdict for the defendant. Whereupon plaintiffs took a nonsuit, with leave to set the same aside. Thereafter, in due time, they moved the court to set the judgment of nonsuit aside. This the court declined to do, wherefore they prosecute this appeal.
The stipulation in the contract relied upon by defendant is as follows: "That as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated; and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims." As above stated, it stands conceded the plaintiffs failed to comply with these provisions of the contract, and notice was not given until several days after the hogs had been unloaded and commingled with others, and, for that matter, after they were sold upon the market. The limitation requiring notice to be given within one day after delivery at destination would, no doubt, be regarded as quite unreasonable in its application to some cases, as imposing an unjust burden under the circumstances attending the transaction. However, the facts regarding the failure to give notice within that time are not sufficient to suggest its application as unreasonable in the present instance, as nothing whatever, looking to that end, was done until some days after the hogs were actually unloaded by pla...
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