Thomas Bros. v. St. Louis & S. F. R. Co.

• Decision Date: 02 February 1915
• Docket Number: No. 13842.,13842.
• Citation: 173 S.W. 96
• Parties: THOMAS BROS. v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

173 S.W. 96

THOMAS BROS. v. ST. LOUIS & S. F. R. CO.

No. 13842.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action by Thomas Bros. against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

W. F. Evans, of St. Louis, and W. J. Orr, of Springfield (O. L. Munger, of Piedmont, of counsel), for appellant. Orchard & Cunningham, of Eminence, for respondents.

REYNOLDS, P. J.

Plaintiffs brought this action to recover for the loss of a mule said to have been injured while being transported by defendant railroad company from Birch Tree, Missouri, to the National Stock Yards, at East St. Louis, Illinois. The ground upon which recovery is claimed is that the car furnished plaintiffs for the transportation of this mule, along with 18 others, was unsafe and not in proper repair or condition, or so became out of repair in transit, and that one of the slats in the car was broken, or so became broken in transit, and that by reason of the defective car the mule got his leg through the opening caused by the breaking of the slat, thereby breaking its leg, and from which injury the mule died.

The answer, after a general denial, avers that this mule, together with the other mules, was shipped under a special live stock contract filed with the answer, by which contract, as it is averred, defendant undertook and agreed to transport the car containing the 19 head of mules from Birch Tree to the consignees named at East St. Louis, Illinois. It is further averred that defendant kept and performed each and every condition of the contract on its part; that the contract was voluntarily entered into by plaintiffs and that they had the option of shipping under the contract or of not shipping under the contract; that each and all of the conditions in the contract are based upon the consideration of a lower rate, as in the contract stated. Among the conditions of the contract set out, one is to the effect that the company "will not be responsible for any death, loss, injury sustained by the live stock from any defect in the cars, escape of live stock, or because the live stock are wild, unruly, or weak or maim each other or themselves," etc. Another is that the extent of the company's liability in case of injury or loss should not exceed the sum of $100. Another set out and pleaded as a condition precedent to the right of recovery is that the shipper "shall give notice, in writing, of his claim, to some general officer of the company, or to the nearest station agent or the agent at destination, and before the live stock is mingled with other live stock, and within one day after its delivery at destination, so that the claim may be properly and fully investigated," and that a failure to comply with this condition should be a bar to the recovery of damages.

The reply sets up, after a general denial, that plaintiffs had no option to enter into any contract with defendant for the shipment of their stock at either a reduced or increased rate; that the contract signed by them was made out by the agent and delivered to them for their signatures and nothing was said in regard to a minimum rate or maximum rate, based on the value of the mules, and that the contract was the same in all respects as is furnished to all shippers from Birch Tree, Missouri, to "St. Louis, Missouri," and that there is no maximum rate or minimum rate fixed therein and none was entered into in this contract. It is further averred that nothing was said between plaintiffs and defendant's agent relative to the value of the mules at the time they were shipped, and no agreement made that the mules were to be valued at not to exceed $100 in consideration of reduced rates, as no reduced rates were agreed upon. Plaintiffs further deny that it was their duty to inspect the cars to ascertain whether they were sound or in good condition or not, the stipulations in said contract to the contrary notwithstanding; that it was the duty of defendant to furnish plaintiffs good and sound cars for the shipment of their stock, and any stipulation or agreement inserted in the shipping contract was void as to these plaintiffs and against public policy. They further deny that the mule which was injured while in transit was injured by the mules being wild or unruly, but aver that the mule was injured by a slat being broken out of the car, denying that the slat was broken by the mule or by mules in the car. They further deny that it was provided in the contract that in case of liability the value of the stock should be the actual cash value of the same at Birch Tree, Missouri, and in no way to exceed the sum of $100, plaintiffs averring that there was no consideration for any such stipulation and that it was void. So also it is averred that the stipulation as to notice was void as without consideration, and that defendant had waived that condition by entering into negotiations for the settlement of the claim and based its refusal to settle wholly and solely on other grounds than that of not having notice of the claim. This latter fact is pleaded in estoppel against defendant to now set up failure of notice as a defense. Finally, it is averred that any contract or agreement made or attempted to be made, limiting defendant's liability on the shipment, is void, and of no effect; that this shipment being an interstate shipment, defendant could not limit its common law liabilities over its own line over which the property might pass, and any contract, receipt, rule or regulation that might have been entered into by defendant for the transportation of the mules from Birch Tree, Missouri, to the National Stock Yards, Illinois, limiting these liabilities was in violation of the laws of the United States and therefore void.

At the trial of the case plaintiff introduced evidence tending to show the shipment of the mule injured, along with 18 other mules, by the plaintiffs, by way of defendant's railroad, from Birch Tree, Missouri, to the National Stock Yards, Illinois; that the mule referred to was in good order, not vicious, wild or unruly; that when the car containing this mule arrived at the National Stock Yards a slat on the car in which it was being hauled was found to be broken and blood and hair were found on the edges of the broken slat, the hair corresponding to that of the mule; that this mule had been taken out of the car and removed to a hospital, its leg found to be broken, and that the mule died while in this hospital as a result of its injuries. There was also testimony tending to show that its value at Birch Tree, Missouri, was $190. This is the case for the plaintiffs.

At its conclusion defendant interposed a demurrer, asking for a direction for a verdict. Defendant then offered a deposition, which is not in the abstract, counsel stating that it is not material to the question presented. Defendant thereupon offered the live stock shipping contract referred to in its answer, and which had been identified by one of the plaintiffs as having been signed by him. This was objected to by counsel for plaintiffs as an attempt by defendant to limit its liability, "which cannot be done under the United States law;" that there was no consideration in the contract and nothing mentioned as to how much freight was to be paid, or that there was a lower rate or a higher rate, that part of the contract being left blank. There was the further objection that there is no consideration for the basis of any contract, "and under the decisions of the Supreme Court it is absolutely void." The court, without stating upon which of these several grounds it acted, excluded the contract from evidence.

The contract offered is in the abstract before us and it is sufficient to say of it that it contains the stipulations set out in the answer.

At the close of all the evidence, defendant again asked the court to instruct the jury that under the pleadings, the law, and the evidence, their verdict must be for defendant. This was refused. At the instance of plaintiffs the court gave two instructions, defendant excepting, and at the request of defendant it gave one instruction. In the view we take of the case, it is unnecessary to set out any of these.

There was a verdict for plaintiffs in the sum of $190, judgment following, from which defendant has appealed.

The errors assigned are to the refusal to direct a verdict for defendant at the close of plaintiff's evidence and again at the close of all the evidence; to error in refusing to admit in evidence the live stock contract under which the shipment was made; to error in giving the two instructions on the part of the respondents; to error in overruling the motion for new trial; to error in allowing respondents to contradict the provisions of the written contract.

At the threshold of their...