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

• Decision Date: 30 April 1883
• Court: Missouri Supreme Court
• Parties: THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY v. CLEARY, Appellant.

77 Mo. 634

THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY

v.CLEARY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

Hale & Eads for appellant.

Wells H. Blodgett for respondent

NORTON, J.

This suit was instituted in the circuit court of Carroll county, to recover of defendant the sum of $125.50, for transporting six car loads of cattle from Kansas City to Norborne.

It is averred in the petition that plaintiff and defendant entered into a special contract in writing, whereby the plaintiff undertook to transport for defendant six car loads of cattle from Kansas City to Norborne at $20.50 per car, which it was averred was a reduced rate, in consideration of the undertaking and agreement of defendant to take care of said cattle while on the trip, load and unload the same at his own risk and expense, and that plaintiff should not be responsible for any loss, damages or injury which might happen to said freight in loading, forwarding or unloading, etc. It is also averred that in said contract defendant agreed that any claim for damages that might accrue under said contract, should be made in writing to the general freight agent of defendant within five days after the cattle were unloaded at the place of destination. It is also averred that plaintiff shipped said cattle in pursuance of the contract, and that defendant has failed and refused to pay the price agreed upon.

Defendant, in his answer, admitted that he executed the contract sued upon, but averred that before the same was executed by him, he had verbally agreed with plaintiff as to the number of cars, the price to be paid per car, the time of shipping the stock and the manner in which they were to be shipped, and that after said cattle had been loaded in the cars under said verbal contract, and while the train was about starting, and did within a very few minutes thereafter start, the contract set forth in plaintiff's petition was presented to defendant for his signature and “under the impression that said written contract contained substantially the contract that had been previously agreed upon, the defendant, not having time to read the same before the train started, signed the same without any knowledge on his part that it contained the reservations and exceptions therein contained.” The answer further set up, by way of counter-claim, that by reason of delays, occasioned by the negligence of plaintiff, defendant's cattle were injured to the amount of $250, which he asked to be set off against plaintiff's claim and for judgment in his favor for the balance.

The cause was tried by the court without the intervention of a jury, and judgment was rendered for plaintiff for $125.50, from which defendant has appealed to this court.

On the trial, evidence was introduced tending to prove the averments of the petition, and also evidence tending to prove the allegations of the answer, and the only ground relied upon for a reversal of the judgment is the action of the court in refusing the following instructions asked by defendant:

1. If the cattle referred to in the pleadings and testimony were actually loaded into the cars of plaintiff, as stated in the answer, before the alleged written contract was signed, and were received by the agent of the company with the previous verbal understanding as to the terms of shipment, then the rights and liabilities of the parties to said shipment were fixed, and the liabilities of plaintiff thereunder as common carriers were not modified or changed by said written contract.

2. The liability of plaintiff in this case is that of a common carrier, and not a forwarder merely, and the stipulation to that effect in the alleged written contract, is void.

3. The cause of action set up by the defendant in his answer and counter-claim is founded on the alleged wrongful, willful and negligent acts and conduct of plaintiff, and not on the written contract set up in the petition.

4. If the defendant had not the time before the alleged departure of the train after the cattle were loaded, to examine the printed and written conditions of the written contract set up in the petition, and if defendant was leaving on said train with his cattle,...