St. Louis & S. F. R. Co. v. Wells

• Citation: 99 S.W. 534
• Parties: ST. LOUIS & S. F. R. CO. v. WELLS.
• Decision Date: 21 January 1907
• Court: Supreme Court of Arkansas

99 S.W. 534

ST. LOUIS & S. F. R. CO. v. WELLS.

Supreme Court of Arkansas.

January 21, 1907.

Appeal from Circuit Court, Washington County; J. S. Maples, Judge.

Action by R. T. Wells against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. F. Parker and B. R. Davidson, for appellant. E. S. McDaniel, for appellee.

McCULLOCH, J.

This is an action against appellant railroad company, to recover the value of a jack, alleged to be of the value of $240, shipped over defendant's line from Fayetteville to Van Buren, Ark., there to be delivered to a connecting carrier. It is alleged in the complaint that, by reason of negligence of defendant's employé in the operation of the train, the jack was killed while in transit and before arrival at Van Buren. The action was commenced more than a year after the shipment and death of the jack. The defendant filed an answer denying that its servants were guilty of any negligence, or that the jack was injured while in transit. As a further defense the written contract for shipment entered into between plaintiff and defendant limiting the liability of the carrier in consideration of reduced rates for transportation was set forth and pleaded, and it was alleged that, by the terms of said contract, it was stipulated, among other things, that, in the event the jack should be damaged or killed, the liability of the carrier for the damage should not exceed the value stated in the contract, $100, and that no action against the defendant to recover damages should be maintained unless commenced within six months next after the cause of action should have accrued. The contract was introduced in evidence and it contained the stipulations named above as well as further recitals to the effect that the company offered the shipper two rates on shipments of live stock, and that the shipper elected to accept the reduced or lower rate under a contract limiting the liability of the carrier. The plaintiff testified that, before he signed or accepted the contract, he asked the agent of the company if he had any other contract, and the latter replied in the negative, and that he accepted the contract because he could secure no other. This was contradicted by the agent, who testified that the higher rates on all shipment of live stock, according to value, under bills of lading or contracts containing no limitation of the carrier's liability, were allowed by the company; that he had no other printed form of contract prepared for shipments of live stock, but that he could, by interlineation, etc., alter an ordinary bill of lading containing no limitation of liability so as to provide another form of live stock contract, whenever a shipper elected to accept a higher rate under such contract. The jury returned a verdict in favor of the plaintiff, assessing the damage at the sum of $267.08, and the defendant appealed.

It is contended on behalf of appellant that appellee was bound by the contract limiting the liability of the carrier even if he was denied the benefit of any other contract or rate, and that the recitals of the contract to the effect that he had elected to accept it in consideration of the reduced rate precluded him from proving that the company's agent had refused to give him any other contract or rate. This court held in Railway Co. v. Cravens, 57 Ark. 112, 20 S. W. 803, 18 L. R. A. 527, 38 Am. St. Rep. 230, that (quoting the syllabus) "a carrier cannot, by special contract, limit its common-law liability for losses not occasioned by its own negligence where it does not afford the shipper an opportunity to contract for the service required without such restriction, and it is immaterial that the shipper knowingly accepted a bill of lading containing such restriction, without demanding a different contract, if he knew that the carrier's agent had no authority to make any other contract with him." In the case at bar the undisputed evidence is that the carrier had another rate to offer the shipper, and the contract recited that fact, but there is evidence tending to show that the local agent refused to give the shipper the opportunity to make any other contract than one restricting the liability of the carrier. Now, it matters not how many different rates or forms of contract the carrier is willing to give to the shipper, if the local agent with whom the latter deals denies him the opportunity to take advantage of the more favorable contract on a higher freight rate, or, what amounts to the same thing, informs him that there are no other terms or conditions upon which he can have his property transported, then there is, in fact, no opportunity afforded to contract for shipment on unrestricted terms and the restrictions are void. The contract for a limited liability of the carrier must be based upon the consent of the shipper upon a valid consideration, and, no matter what the contract contains by way of recitals or stipulations, if no opportunity for unrestricted service is afforded then it is imposing the restricted contract upon the shipper...