Summers v. Wabash R. Co.
| Decision Date | 06 November 1905 |
| Citation | 79 S.W. 481,114 Mo.App. 452 |
| Parties | W. H. SUMMERS, Respondent, v. WABASH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
January 4, 1904;
Appeal from Chariton Circuit Court.--Hon. Jno. P. Butler, Judge.
Cause affirmed.
Geo. S Grover for appellant.
(1) Under the undisputed facts in evidence the plaintiff was not entitled to recover. Kellerman v. Railroad, 136 Mo 178; Durenick v. Railroad, 57 Mo.App. 556; Wyrick v. Railroad, 74 Mo.App. 406; Bowring v Railroad, 77 Mo.App. 250; s. c., 90 Mo.App. 324; Vaughn v. Railroad, 78 Mo.App. 639; Witting v Railroad, 101 Mo. 640. The plaintiff was not entitled to recover in this action, any damages whatever in behalf of either J. H. Summers or W. H. McCormack, who are not parties to this action. R. S. 1899, sec. 540. (2) The court gave erroneous instructions, at plaintiff's request, as well as of its own motion. Authorities cited supra; Galbreath v. Carnes, 91 Mo.App. 512; Holwerson v. Railroad, 157 Mo. 244. (3) There is an "irreconcilable conflict" between the instructions given at the request of plaintiff and those given by the court below of its own motion, so that it is impossible to tell which guide the jury followed. In any event, they were certainly confused and misled. Quirk v. Elevator Co., 126 Mo. 295; White v. Ins. Co., 93 Mo.App. 282.
Fred Lamb for respondent.
(1) As common carrier it was the duty of defendant to deliver the stock at its destination within a reasonable time. Levering v. Ins. Co., 42 Mo. 95; Reed v. Railroad, 60 Mo. 206; Rice v. Railroad, 63 Mo. 314; Davis v. Railroad, 89 Mo. 349-50; Witting v. Railroad, 101 Mo. 640; Ginn v. Railroad, 20 Mo.App. 461; Doan v. Railroad, 38 Mo.App. 413 and 414; Vaughan v. Railroad, 78 Mo.App. 641-3-4; Davis v. Railroad, 89 Mo. 349; Milling Co. v. Transit Co., 122 Mo. 276. (2) This was an interstate shipment and must be governed by the provisions of the interstate commerce law. By the provisions of this law the defendant is required to file with said commission its schedule of rates applicable to shipments of this kind between the points in question. And the parties, whether carrier or shipper, are held to have contracted with reference to these rates regardless of any provision that may have been inserted in the contract by the parties for "the rates of interstate shipments are not the subject of contract, but are in effect, fixed under the law." Gerber v. Railroad, 63 Mo.App. 148; Wyrack v. Railroad, 74 Mo.App. 417; Ward v. Railroad, 158 Mo. 226; Sec. 6, Interstate Commerce Law, R. S. U.S. 1901, p. 3156. (3) We submit that under the law the waiver of the affidavit was as full and complete as it could have been, and the defendant will not be permitted to take advantage of it after receiving the claim and negotiating with the plaintiff for a settlement. The question was submitted to the jury under a proper instruction and the defendant is bound by that finding. Hamilton v. Railroad, 80 Mo.App. 597; Hess v. Railroad, 40 Mo.App. 202; Hamed v. Railroad, Mo.App. 482; Richardson v. Railroad, 62 Mo.App. 1.
The plaintiff Summers on the 5th day of August, 1902, delivered to defendant at Huntsville, Missouri, for shipment to Chicago, Illinois, nine carloads of cattle containing 173 head, and one carload of hogs containing 63 head. Two of the cattle were owned by other persons. The shipment was consigned to Murray & McDowell, commission merchants at Chicago, and were by them sold on August 7 on the market. Some of the contracts for shipment were signed by plaintiff and others were signed by W. H. McCormack and J. H. Summers, the respective owners of the two head of cattle not owned by plaintiff. It was shown that the defendant's agents knew the facts in regard to the ownership of the cattle. There was evidence that the train transporting the cattle was delayed en route and that they did not arrive at their destination at the Chicago stockyards until 2 o'clock and 30 minutes p. m. on the 6th of August when by schedule and ordinary time for such shipments they should have arrived on the morning of that day and in time for that day's market; that they arrived too late for the market of August 6 and consequently had to be kept until the market of the next day; that in the meantime the market value of the cattle had declined twenty-five cents and the hogs ten cents on the hundred pounds; that in consequence of the non-arrival of the shipment in time for the market of August 6, plaintiff was compelled to purchase feed and water for his stock and that there was a greater shrinkage in the weight of the animals than there would have been but for the delay in transit. The rates agreed upon between the parties were nineteen and one-half cents per hundred pounds for the cattle and twenty cents for the hogs. The contracts for shipment of the different lots of stock were in the following form, that for the hogs only different from that of the cattle in the rate and value, viz.: "To the Wabash Railroad Company: The undersigned offers for shipment over your railroad fifty-one head of cattle from Huntsville to Chicago (each) of the estimated weight of 1,500 pounds and valued at $ 50 per head, and subject to the rules and regulations and of the schedule of valuation and weights printed on the back hereof, such valuation being named by me for the purpose of securing a reduced rate of freight; and in case of loss or injury to said livestock the liability of the carrier or carriers shall not exceed the above amount per head." There was a provision in the contract that, "In consideration of the rate aforesaid it is further agreed that no claim for damages which may accrue to the party of the second part under this contract shall be allowed or paid by the party of the first part, or sued for in any court by the party of the second part, unless a claim for such loss or damages shall be made in writing, verified by affidavit of the party of the second part, or his or their agent and delivered to the general freight agent of the party of the first part in his office in the city of St. Louis within ten days from the time said stock is removed from the cars." And it was also further provided that in consideration of said reduced rate that in the event of any unnecessary delay or detention of the stock while en route, plaintiff agreed to accept as full compensation for all loss or damages sustained in consequence of such delay the actual amount expended by the plaintiff in the purchase of food and water for the cattle and hogs. It was in evidence that plaintiff's claim for his loss occasioned by the delay was filed with defendant's general freight agent at his office within the required time, but it was not supported by plaintiff's affidavit; yet, it was further shown that said agent made no objection to it for that omission and that thereafter he negotiated both verbally and in writing with plaintiff with a view of adjusting his claim. Evidence was also introduced to show the amount expended by plaintiff for feed and water rendered necessary.
It was agreed that the shipment in question was subject to the interstate commerce law. The certificate of the secretary of the interstate commerce commission was introduced showing that defendant's rate of shipment between Huntsville Missouri, and Chicago, Illinois, as filed with the commission, was nineteen and one-half cents for cattle and twenty cents per hundred pounds for hogs, corresponding with the rates in the contracts in suit. There was introduced as evidence, or, at least, it is attached to the bill of exceptions, a paper purporting to contain what is designated as the joint freight tariff between defendant and the Chicago, Rock Island and Pacific Railway Company, which shows that the defendant had other and higher rates for the shipment of cattle and hogs between Huntsville and Chicago; but these rates are not referred to in the said certificate of the interstate commerce commission. It was shown what was...
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