Stewart v. The Cleveland, Cincinnati, Chicago And St. Louis Railway Company

• Decision Date: 30 November 1898
• Docket Number: 2,523
• Citation: 52 N.E. 89,21 Ind.App. 218
• Parties: STEWART ET AL. v. THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY
• Court: Indiana Appellate Court

52 N.E. 89

21 Ind.App. 218

STEWART ET AL. v. THE CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY

No. 2,523

Court of Appeals of Indiana

November 30, 1898

From the Delaware Circuit Court.

Affirmed.

Wagner Bingham & Long, for appellants.

John W Ryan and William A. Thompson, for appellee.

OPINION

BLACK C. J.

In an action brought by the appellants against the appellee, the court below rendered judgment for the latter upon a special verdict. The question as to which party was entitled to judgment upon the verdict is alone presented for determination.

The verdict showed that the appellants were partners in the business of buying and shipping live stock, and had been so engaged for four years, at Daleville, Indiana, between which place and Cleveland, Ohio, and East Buffalo, New York, the appellee was a common carrier; that on the 19th of September 1895, the appellants delivered to the appellee, at Daleville, a carload of live stock, including sixty-six hogs, to be transported to East Buffalo, consigned to certain commission merchants there who were to act for the appellants in selling the stock. The verdict showed loss suffered by the appellants upon the hogs. The only question for our consideration being as to whether or not the shipment should be regarded as having been made under a certain written shipper's contract signed by both parties, by which the appellee's common law liability as a common carrier was limited, we need not recite more than those parts of the verdict which relate to that subject. On the evening of Wednesday, September 18, 1895, the appellants asked the appellee's agent at Daleville if if they could get a car to ship a load of stock to East Buffalo for Saturday's market. The agent answered, "I will try; I think I can." Nothing was said about the price or rate of freight to be paid for carrying the stock. The agent caused a car to be placed on the side-track by the chute of the stock pens at Daleville, and then notified the appellants, about half past two o'clock in the afternoon of September 19, 1895, that if they could load the stock at once, he could start them on a through freight train then just leaving Anderson, when the train should pass Daleville; and the appellants immediately loaded said stock, or caused it to be loaded, in said car, the agent knowing that they were doing so. The train arrived at Daleville about three o'clock on said September 19th, and the agent caused the car containing said stock of the appellants to be placed in said train, and the stock started in said train en route for East Buffalo at about a quarter past three o'clock in the afternoon of the same day. About fifteen or twenty minutes after the train had started, Hoppis, one of the two appellants, in connection with the shipment in controversy, signed their firm name to the shipper's contract in question. Besides the signatures at the foot of the contract, the appellants' firm name was also subscribed upon the back thereof under a heading setting forth the name of the appellee and the words "Live Stock Contract." Both of the appellants could read and write, and they had an opportunity to read the contract before signing it, but neither of them read it or knew its contents. The agent did nothing to prevent Hoppis from seeing and reading the contract, which, after signing, he voluntarily left with the agent, who never refused to give a copy thereof to the appellants; and three or four days after Hoppis signed the contract, he procured a copy thereof from said agent at Daleville. It was found that the through freight rate charged the appellants by the appellee for shipping said stock was sixteen cents per hundred pounds (which rate was stipulated in the contract, and stated therein to be a reduced rate), and that at the time of this shipment the rate of freight on live stock from Daleville to East Buffalo was sixteen cents when the shipper signed a shipper's contract. It was also found by the jury that when the shipper did not sign a shipper's contract, the rate was twenty per cent, higher, "but not practiced."

The appellants had been shipping stock at the average rate of about one carload a week from Daleville to East Buffalo, through the summer and immediately prior to this shipment, and sixteen cents per hundred pounds was the rate charged on all their prior shipments. When they made their prior shipments they signed, at the time of shipping, what is called the shipper's contract, "only part of the time," but "most of the time." It was found that the appellants did not know that the appellee required persons shipping live stock at the rate of sixteen cents per hundred pounds from Daleville to East Buffalo to sign a written "contract or bill of lading" limiting the liability of the appellee as a common carrier. Being asked if the appellee had any form of contract or bill of lading for the shipment of live stock from Daleville to East Buffalo, other than the one presented to the appellants and signed by them, the jury answered, "As to contract, no; but bill of lading, yes." It was also found that the appellee did not require all shippers of live stock from Daleville to East Buffalo to sign the same kind of contract or bill of lading as that signed in this instance.

The jury by answers to a number of interrogatories indicated that they regarded a shipment as not having been made under a shipper's contract unless it was signed by the shipper before the car left the station, and that they considered and concluded, and some of their answers were to the effect, that in the present instance the contract under which the stock was shipped was an "implied agreement" arising out of what had taken place prior to the departure of the train from the station, and not the written shipper's contract signed immediately after the train had started. The writing in question was not a bill of lading or receipt or mere memorandum, but was a contract signed by both parties.

The case does not seem to call for a determination of the question as to the proper effect to be given to evidence of the mere acceptance by the shipper of a bill of lading alone, or receipt signed by the carrier, either at the delivery of the goods or after the shipment thereof, the shipper being ignorant of the contents of the writing. There is no room here for denying the shipper's assent to the terms of the written contract.

The rule that a person who signs a contract without reading it or having it read to him cannot avoid it in the absence of fraud, misrepresentation or mistake, on the ground of ignorance of its contents, applies to such shipper's contracts as the one here in question. Western R Co. v. Harwell, 91 Ala. 340, 8 So. 649. In Black v. Wabash, etc., R. Co., 111 Ill. 351, it was said: "Where a party of mature years and sound mind, being able to read and write, without any imposition or artifice to throw him off his guard, deliberately signs a written agreement without informing...