The Donohoo Horse & Mule Company v. The Missouri

• Decision Date: 12 June 1915
• Docket Number: 19,358
• Citation: 95 Kan. 681,149 P. 436
• Court: Kansas Supreme Court
• Parties: THE DONOHOO HORSE & MULE COMPANY, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

149 P. 436

95 Kan. 681

THE DONOHOO HORSE & MULE COMPANY, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

No. 19,358

Supreme Court of Kansas

June 12, 1915

Decided. January, 1915.

Appeal from Bourbon district court; CHARLES E. HULETT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INTERSTATE SHIPMENT--Agreement--Limiting Liability for Damages--Limitation May Not be Increased by Subsequent Agreement. In an interstate shipment where the liability of the carrier is proportioned and limited under a just and reasonable agreement that in case of loss or injury the shipper shall recover no more than a certain valuation of the property transported which is fixed by an agreement made in consideration that the shipper shall have the lower of two rates the limitation enters into and becomes a part of the rate, and the parties can not by any compromise or agreement after a loss has occurred change the limitation and arrange for the payment of a greater amount than the value as fixed in the shipping contract and which became a factor of the rate charged.

2. SAME--Time within Which Action May be Brought--Subject to Waiver. The stipulation in a shipping contract to the effect that in case of loss or injury to the property transported an action for recovery must be brought within a stipulated time is subject to waiver and estoppel by the parties.

W. W Brown, James W. Reid, both of Parsons, and John H. Crider, of Fort Scott, for the appellant.

A. M. Keene, of Fort Scott, for the appellee.

OPINION

JOHNSTON, C. J.

An action for the loss of a horse was brought by, J. M. Piper against The Missouri, Kansas & Texas Railway Company before a justice of the peace of Bourbon county on July 22 1911, but by an amendment The Donohoo Horse and Mule Company was substituted as plaintiff. The railway company had undertaken to carry the horse in question with other horses from Labette, Kan., to Memphis, Tenn., and it was arranged that still other horses should be placed in the car when it reached Fort Scott. Upon arrival at Fort Scott it was found that the leg of the horse was broken. It was alleged that the injury was due to the negligence of the defendant, that upon the order of the agent of the defendant at Fort Scott the horse was killed, and that the agent agreed with the plaintiff on a settlement of the loss under which the defendant was to pay plaintiff the sum of $ 225 but that payment had never been made. Another action upon the same claim was brought in Labette county but it was not prosecuted to judgment. An appeal was taken from the judgment rendered by the justice of the peace of Bourbon county to the district court of that county, and a trial was had at the October term, 1913. Motions by the defendant for a continuance and for leave to file an answer were overruled, and of these rulings complaint is made. While there was some excuse for the defendant being unready for trial the questions whether there should be further delay and an opportunity to file a pleading at that late time were within the discretion of the trial court, and we can not say that the discretion was abused nor that the defendant was prejudiced by the rulings. On the trial the manager of the plaintiff testified that the horse injured was worth $ 172.50, that being the amount which plaintiff had paid for the horse in Labette county, and the court permitted an amendment of the bill of particulars making the claim $ 172.50 instead of $ 225 as originally claimed. He further testified that upon the discovery that the horse's leg was broken at Fort Scott the agent of the defendant called a veterinary surgeon, who decided that the break could not be mended, and thereupon the agent ordered the horse to be killed and told the witness that he would have to put in a claim for the loss, but the witness then informed the agent that the company could keep the three horses that were in the car with the injured one and that he would not accept the three horses until the defendant had settled with him, that the agent then communicated with the officers of the company at St. Louis and subsequently reported that defendant would pay the $ 172.50 for the horse, but that it would be necessary for him...