Smith v. Findley

• Decision Date: 07 November 1885
• Citation: 8 P. 871,34 Kan. 316
• Parties: A. G. SMITH v. DAVID V. FINDLEY
• Court: Kansas Supreme Court

8 P. 871

34 Kan. 316

A. G. SMITH v. DAVID V. FINDLEY

Supreme Court of Kansas

November 7, 1885

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Error from Ottawa District Court.

IN April, 1880, A. G. Smith was the agent of the Union Pacific Railway Company at Minneapolis, in this state. David V Findley had shipped from Bloomington, Indiana, to Minneapolis, via the Union Pacific Railway, on April 12 1880, a car in which there were two horses and some household goods, and also potatoes, bacon, vinegar, and salt. Upon the arrival of the car at Minneapolis, Findley paid $ 100 freight, $ 65 of which was for back charges, and $ 35 for transportation over the Union Pacific Railway from Kansas City, or state line, to Minneapolis. After the payment of this money to Smith, the agent of the railway company, the latter discovered that the company had transported in the car along with the household goods for Findley, potatoes, bacon, vinegar and salt, and thereupon demanded of Findley $ 11.88 as additional or extra freight, and also held the goods for the same. Findley refused to pay the $ 11.88, and on April 16, 1880, commenced an action against A. G. Smith before a justice of the peace of Ottawa county, to replevy the goods from Smith, for which extra or additional freight was charged. Judgment was rendered in his favor before the justice, and the defendant appealed to the district court. Upon leave of that court, Findley filed the following petition, court and title omitted:

"Said plaintiff complains of said defendant, and says that plaintiff is entitled to the immediate possession of the following-described goods, and that he is the owner of the said goods, to wit: Thirty bushels of potatoes, of the actual value of $ 30; 1 1/2 barrels of apple vinegar, at the actual value of $ 10; one-half barrel of salt, at the actual value of $ 1.75; 200 pounds of hog meat, of the actual value of $ 20. Said plaintiff alleges that said defendant wrongfully detained said goods for the space of one day; that said plaintiff was detained at Minneapolis, Kansas, for the space of two days, by reason of not getting possession of said goods, to his damage in the sum of thirty dollars. Plaintiff therefore demands judgment for the immediate possession of said goods, or in case he cannot get possession, for the value thereof, together with $ 30 damage, and costs of suit in the case."

Trial at the May Term, 1884, before the court with a jury. The following is the contract between the plaintiff and the Kansas Pacific Railway Company, (Union Pacific Rly. Co.,) which was offered in evidence by plaintiff:

"LIVE STOCK CONTRACT.--Cars, Nos. 4117; initials, I. & St. L.--STATE LINE STATION, April 11, 1880.--Agreement made between the Kansas Pacific Railway Company, of the first part, and D. V. Findley, of the second part, Witnesseth: That whereas, the said Kansas Pacific Railway Company, as a common carrier, transports live stock only as per annexed tariff, now considering that the said party of the first part will transport for the said party of the second part one car-load of H. H. goods and two horses from State Line station to Minneapolis station at the rate of $ 35 per car-load, the same being a special rate, lower than the regular rates mentioned in said tariff, the said party of the second part hereby relieves said party of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a private carrier for hire.

"And said party of the second part hereby accepts for such transportation the cars provided by said company and used for shipment of said stock, and hereby assumes all risk of injury which the animals or either of them may receive in consequence of any of them being wild, unruly or weak, or maiming each other or themselves, or in consequence of heat or suffocation or other ill effects of being crowded in the cars, or on account of being injured by the burning of hay, straw, or other material used by the owner for feeding the stock or otherwise, and also all risk of damage which may be sustained by reason of any delay in such transportation, and all risk of the escape of any portion of said stock, or of loss or damage from any other cause or thing not resulting from the willful negligence of the agents of the said party of the first part.

"And the said party of the second part further agrees that he will load and unload said stock at his own risk, and feed, water and attend the same at his own expense and risk, while it is in the stock-yards of the party of the first part awaiting shipment, and while on the cars, or at feeding or transfer points, or where it may be unloaded for any purpose.

"And it is further agreed that said party of the second part will see that said stock is securely placed in the cars furnished, and that the cars are safely and properly fastened so as to prevent the escape of said stock therefrom. And it is further agreed that in case the said party of the first part shall furnish laborers to assist in loading and unloading said stock, they shall be subject to the orders and deemed the employes of the said party of the second part while so assisting. And for the consideration before mentioned said party of the second part further agrees that as a condition precedent to his right to recover any damages for loss or injury to said stock he will give notice in writing of his claim therefor to some officer of the said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party, and before such stock is mingled with other stock.

"The evidence that the said party of the second part, after a full understanding hereof, assents to all the conditions of this contract is his signature hereto.

"FRANK C. JACKSON, Agent for the Company.

"D. V. FINDLEY, Shipper.

RULES AND REGULATIONS FOR THE TRANSPORTATION OF LIVE STOCK.-- Blood animals, or animals deemed especially valuable, will be carried only on special contract, and agents are not allowed to receive and ship such animals until a proper contract is made between the owner or consignor and the general freight agent. Live stock, not especially valuable, will be rated at first-class rates upon the following estimated weights:

One horse, mule, or horned animal

2,000 lbs.

Stallions estimated at

4,000 "

Two horses, mules, or horned animals

3,500 "

Three horses, mules, or horned animals

5,000 "

Each additional animal

1,000 "

"Hogs, sheep, lambs and calves will be estimated at actual weight, but not less than 280 lbs. each, and will be charged first class. One will not be charged less than 75 cents, however short the distance. Tariff rate per car on this shipment from state line to Minneapolis, $ 60.

"In case damages occur in transporting live stock, for which the company may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed for a stallion, $ 200; horse, $ 100; mule, $ 65; cattle, $ 50; and other animals, $ 20. At the above classification the company agrees to take proper care of the animals, and assume the liability, not exceeding the amounts given above, for loss or damage which may occur to them through the fault or negligence of its officers, agents or employes while in transportation over its road. In case, however, the owner or consignor agrees to save the company from liability for loss or damage occurring from any or all of the causes enumerated in the foregoing contract, and also agrees to load, unload, feed, water and attend to the stock himself, a special rate will be given upon ordinary stock in car-load lots. Persons not accompanying stock on same train, but preceding it, or following after on passenger or freight train, will not be passed on stock contract, but will be charged regular passenger fare; nor will money be refunded, or passes given, for fares thus paid. Agents are not authorized to agree to forward live stock at any specified time."

The following receipt was also offered in evidence by the plaintiff:

"A. O. 13.--No. 130.--MINNEAPOLIS, Ks., STATION, April 13, 1880.-- Mr. D. V. Findley, for transportation from , to Union Pacific Railway Company, Dr. Manifest. Date, 11. No. 1586. Car No., 4117; initials, I. & St. L. Description of articles: H. H. gds. and 2 horses. Weight, 20,000; rate for __; amount, $ 35.00. Rel. Consignor, Wabash 28. Freight, $ 35.00; charges advanced, $ 65.00; total, $ 100.00.

"INSTRUCTIONS.--1. This expense bill must be properly filled up. 2. Charges must in all cases be paid in cash on delivery of goods. 3. Claims for overcharge, loss or damage, should be sent to the general freight agent, accompanied by original expense bill, bill of lading, and full particulars.

"Received payment for the company, 18__.

A. G. SMITH, Agent."

The following is the bill made out by the defendant, A. G. Smith, for the freight upon the potatoes, vinegar, salt and bacon shipped by plaintiff to Minneapolis, which freight the plaintiff refused to pay:

"A O. 13. -- MINNEAPOLIS, KANSAS, STATION, 4--13-1880. -- No 130 1/2. -- Mr. D. V. Findley, for transportation from S. L., to Union Pacific Railway Company, Dr. Manifest. Date, 4-11. No. 1586. Car No., 4117; initials, I. & St. L. Description of articles --weight: 1 bbl. salt and bacon, 180; 1 bbl. vinegar, 400; 1/2 bbl. vinegar, 180; 1 bbl....