Thee v. Wabash Ry. Co.

• Decision Date: 05 January 1920
• Docket Number: No. 13395.,13395.
• Citation: 217 S.W. 566
• Parties: THEE et al. v. WABASH RY. CO.
• Court: Missouri Court of Appeals

217 S.W. 566

THEE et al. v. WABASH RY. CO.

No. 13395.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

"Not to be officially published."

Action by Ed. Thee and others against the Wabash Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

McBaine, Clark & Rollins, of Columbia, for appellant.

N. T. Gentry, of Columbia, for respondents.

ELLISON, P. J.

Plaintiffs' action is based on a breach of contract to ship 56 head of fat cattle for plaintiffs from Columbia, Mo., Chicago, Ill. They recovered judgment in the trial court.

It appears from the evidence that two contracts are involved. The one upon which the action is based was oral and was made between plaintiffs and defendant's station agent at Columbia. The other was a written contract to which we will refer further on. The oral contract was made first and was made up from a conversation between one of plaintiffs and defendant's assistant agent at Columbia, as follows: On Sunday the 14th of October, 1917, one of plaintiffs called the station over the telephone and told the assistant agent that, "I wanted three cars for Monday to ship cattle in, anti he said, `All right, they will be here.'" Plaintiffs brought the cattle in on the next day (Monday), arriving at about 11 o'clock in the morning, and put them in defendant's yard stock pens, provided by defendant for cattle awaiting shipment. The station "agent then informed him that he had been unable to procure the cars for that day. This compelled plaintiff to hold the cattle till the next day, causing an expenditure for feed and a delay in reaching destination—which caused shrinkage and compelled a sale on a lower market.

The verbal agreement for shipment, as pleaded, was illegal under the Carmack Amendment to the Interstate Commerce Statute (U. S. Comp. St. §§ 8604a, 8604aa). By that statute, as amended (38 Stat. 1196), it is provided:

"That any common carrier, * * * receiving property for transportation from a point in one state to a point in another state, etc., * * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof, etc. * * "

The receipt or bill of lading (the written contract in this case) was issued. That written contract must govern this shipment to the exclusion of any oral contract. Atchison, T. & S. F. By. Co. v. Robinson, 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901; Johnson v. Railroad, 187 S. W. 282.

The first of these cases concerned the shipment of a race horse. As in this case, a prior oral contract with the station agent was claimed, in which it was agreed the shipment would be made by a certain fast train to be taken out that evening; that instead of doing so, the car in which the horse was loaded was not taken till next day, when it was put in a local train and arrived at destination too late for the races. It was shown that the horse was badly injured, and on the action in the state court the owner was allowed 81,500. The railroad company set up in its answer that the shipment was interstate commerce and that the company had certain tariff rates and limitations of value (much below the sum allowed plaintiff) duly posted according to the interstate commerce statute. It was further alleged in the answer that, after the alleged oral agreement was made, a written contract was executed by the shipper "based upon the filed schedules" (233 U. S. 181, 34 Sup. Ct. 558, 58 L. Ed. 901) whereby he obtained the beneten fit of the rate of freight based on the limited valuation of the horse. The plaintiff in that case insisted that the complete contract was embraced in the oral contract with the defendant's agent. This the court denied and held that the written contract executed after the one made orally governed, by force of the federal statute, without regard to the fact that the railway company did not disclose to the plaintiff the terms of the writing and procure his assent thereto, and that

"If oral agreements of this character can be sustained then the door is open to all manner of special contracts. * * *"

In addition to the foregoing, we add the following: It seems to us that on the basis of plaintiffs' petition the evidence in their behalf entirely fails to support the cause of action stated in their petition. After alleging formal matter, the petition continues:

"The plaintiffs state that...