Wabash Railroad Co. v. Ordelheide

• Decision Date: 04 March 1903
• Citation: 72 S.W. 684,172 Mo. 436
• Parties: WABASH RAILROAD COMPANY v. ORDELHEIDE, Appellant
• Court: Missouri Supreme Court

72 S.W. 684

172 Mo. 436

WABASH RAILROAD COMPANY v. ORDELHEIDE, Appellant

Supreme Court of Missouri

March 4, 1903

Transferred from St. Louis Court of Appeals.

Affirmed.

L. J Dryden, H. W. Johnson and C. W. Wilson for appellant.

(1) The contract between the railroad company and Ordelheide, upon which this suit is based, does not exempt the railroad company from liability for damages caused by its own negligence, and does not bind Ordelheide as an insurer of the company against damages caused to third parties by the negligence of the company, or for any other cause. (2) A contract will not be construed to exempt from liability for loss caused by misconduct or negligence unless there be an express stipulation to that effect. The terms used must be such as to leave no doubt as to the understanding or intention of the parties. Navigation Co. v. Bank, 47 U.S. 382; Maynard v. Railroad, 71 N.Y. 180; Black v. Transportation Co., 55 Wis. 322; 2 Beach on Contracts, pp. 1692-1693, sec. 1505; Wheeler's Modern Law of Carriers, p. 120; 2 Shearman and Redfield on Negligence p. 505; Stemarg v. Railroad, 43 N.Y. 123; Magain v. Dinsmore, 56 N.Y. 168; Cendict v. Railroad, 54 N.Y. 500; Richardson v. Railroad, 62 Mo.App. 5; Ins. Co. v. Railroad, 74 Mo.App. 98. (3) The contract was only intended to exempt from the statutory liability that rested upon the railroad company as an insurer against fire. The general language is to be construed so as to carry out the real purpose of the parties. McManus v. Shoe and Clothing Co., 60 Mo.App. 218; Davis v. Hendrix, 59 Mo.App. 499; Leonard v. Railroad, 54 Mo.App. 301; R. S. 1889, sec. 1111. (4) The contract must be construed strictly against the party claiming exemption from a common-law liability. Richardson v. Railroad, 62 Mo.App. 5. (5) If it be held that the contract exempts from liability for loss caused by the negligence of the company, then it is void as against public policy. 9 Am. and Eng. Ency. of Law, p. 913, sec. 6; 16 Am. and Eng. Ency. of Law, p. 389; Cooley on Torts (2 Ed.), 687, 829; Johnson's Admr. v. Railroad, 86 Va. 975; Blanton v. Dold, 109 Mo. 75; Little v. Railroad, 127 Mo. 343; Levering v. Un. Trans. Co., 42 Mo. 92; Read v. Railroad, 60 Mo. 206; Ball v. Railroad, 83 Mo. 580; Witting v. Railroad, 101 Mo. 631; 9 Am. and Eng. Ency. of Law, pp. 880-881. (6) Want of ordinary care is gross negligence, and gross negligence is a positive wrong. McLean v. Rutherford, 8 Mo. 9; Gray v. Packet Co., 64 Mo. 47; Witting v. Railroad, 101 Mo. 640; Standard Milling Co. v. Transit Co., 122 Mo. 274. (7) There is now pending in the Supreme Court of Missouri another suit between the same parties involving the same subject-matter and the same issues that are involved in this action, to-wit, the cause of Alvina Ordelheide, administratrix of E. F. Ordelheide's Estate vs. The Wabash Railroad Company, the decision of which may determine the issues in this case. 80 Mo.App. 357. (8) The probate court of Warren county, in which said cause originated, and before which the same was tried, did not have jurisdiction to hear, try and determine said cause. The beginning, trial and determination of such causes by the Constitution and laws of the State belong to another jurisdiction and the plaintiff ought not and can not maintain this action. (9) The contract offered in evidence and made the basis of plaintiff's claim and upon which the court made its finding and judgment, is repugnant to the provisions of the Constitution and in violation of the laws thereof and against the rule of law laid down by the courts of the State; and said contract and finding and judgment of the court thereon, are against the public policy of the State as declared in the laws and decisions of the courts thereof, and is also against the general rule of public policy. (10) To allow the plaintiff to recover for injuries, the result of its own negligent, wrong or faulty conduct, is not only violative of the fundamental principles of law, as declared in the Constitution, the statute laws and the decision of the courts thereof, but also of the common law. (11) Statutes and contracts in derogation of common law or common right are strictly construed against the party claiming exemption from the common law or common right. Judson v. Smith, 104 Mo. 73; Bridge Co. v. Ring, 58 Mo. 494; Smith v. Haworth, 53 Mo. 89; State v. Clinton, 67 Mo. 380; State ex rel v. Fisher, 119 Mo. 351; Bank v. Haywood, 62 Mo.App. 555. (12) The rule has never been applied or upheld except in cases where the contract expressly or in specific terms stipulated against negligence. Griswold v. Railroad, 90 Iowa 267; Ins. Co. v. Railroad, 70 F. 202; Ins. Co. v. Railroad, 173 U.S. 91.

Geo. S. Grover for respondent.

(1) The probate court had jurisdiction to hear and allow the claim and demand here sued on. R. S. 1899, sec. 192; Dodson v. Scroggs, 47 Mo. 285; Cones v. Ward, 47 Mo. 289; Grocer Co. v. Painter Est., 66 Mo.App. 481; Jamison v. Wickham, 67 Mo.App. 575; Cole Co. v. Dallmeyer, 101 Mo. 57. (2) The contract of insurance and indemnity upon which this claim and demand is based, is valid. Ordelheide v. Railroad, 80 Mo.App. 357; Rutherford v. Railroad, 147 Mo. 441; Railroad v. News Co., 151 Mo. 373; Gilleland v. Railroad, 19 Mo.App. 411; Ins. Co. v. Railroad, 74 Mo.App. 89; Russell v. Railroad, 61 N.E. 678; Griswold v. Railroad, 90 Iowa 265; Ins. Co. v. Railroad, 70 F. 201; Ins. Co. v. Mfg. Co., 60 F. 39; Ins. Co. v. Railroad, 12 A. & E. R. R. Corp. Cases, 564; Ins. Co. v. Railroad, 175 U.S. 91; 3 Elliott on Railroads, p. 1917. (3) As the judgment below was for less than four thousand five hundred dollars, and no constitutional question was acted upon finally in the trial court, the judgment of the St. Louis Court of Appeals is final and will not be disturbed here. Coleman v. Cole, 158 Mo. 259.

OPINION

In Banc

VALLIANT J.

-- This is a demand presented to the probate court for allowance against the estate of defendant's testator. The claim grows out of the following circumstances:

Plaintiff railroad company in 1892 leased to the testator Ordelheide, in his lifetime, a portion of the land embraced in its right of way in its switch limits at its station at Wright City, on which to erect an elevator and warehouse in which to carry on a business for his own use and benefit.

Among other provisions in the lease was the following: "Witnesseth, that the party of the first part [the railroad company] for and in consideration of the sum of one dollar per annum, in advance to said party of the first part paid by said second party and upon the express condition and stipulation that said second party shall assume all risk of fire from every cause, and shall hold and keep harmless said first party from any and all damage whatsoever, from fire or any other cause to any building or buildings that may be erected on the land herein leased or their appurtenances or contents, which guarantee enters into and forms part of the consideration that induces said first party to make this lease," etc. The lessee erected his warehouse and elevator as contemplated in the lease, and business was conducted therein until April 6, 1895, when the building and its contents were destroyed by fire communicated by a passing locomotive on plaintiff's railroad. There was in the building when it was destroyed an iron safe of the value of $ 400 which was destroyed in the fire and which belonged to a firm under the name of Ordelheide & Kamp of which plaintiff's testator was a member. There was also property stored in the building belonging to the firm of Strack & Astroth of the value of $ 820.25, which was likewise destroyed. Those two firms sued the railroad company for those losses and recovered judgments, Ordelheide & Kamp for $ 400, and Strack & Astroth for $ 820.25. The railroad company defended the suits, and when judgments were rendered against it in the circuit court, appealed to the St. Louis Court of Appeals, but both judgments were affirmed in that court. The plaintiffs in both those suits alleged for their cause of action, respectively, that the fire which destroyed the building was communicated by sparks which the railroad company negligently suffered to escape from a locomotive on its railroad.

Pending this litigation Ordelheide died and the defendant in this case qualified as executrix of his will. After those judgments were affirmed in the Court of Appeals the railroad company paid them both in full and then presented its claim for indemnity under the clause in the lease above quoted against the estate of Ordelheide, deceased. That is what this suit is about. The probate court allowed the claims and placed them in the fifth class; the executrix appealed to the circuit court where trial was had and judgment was rendered for plaintiff for $ 1,230.25, from which judgment the executrix appealed to the St. Louis Court of Appeals and the cause was afterwards transferred to this court in obedience to a writ of mandamus, for the reason that a constitutional question was raised by the defendant's answer in the circuit court.

I. The answer sets up that the contract sued on is in violation of several provisions of our State Constitution which are specified in appellant's brief as follows:

That the railroad company by attempting to avoid liability for its own negligence violates section 14, article 12, which declares railroads to be public highways and railroad companies common carriers.

That the purport of the contract being to convert the right of way into a place for private business, it is in violation of section 20 of the Bill of Rights which declares that private property should not be taken for private use.

That it violates section 7, article 12, which forbids a corporation to engage in any...