Ward v. Missouri Pac. Ry. Co.

• Decision Date: 12 June 1900
• Citation: 158 Mo. 226,58 S.W. 28
• Parties: WARD v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

58 S.W. 28

158 Mo. 226

WARD v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

INTERSTATE COMMERCE — COMMON CARRIERS — SPECIAL RATES — CONSIDERATION OF CONTRACT — NOTICE OF DAMAGES.

1. Where a consignee of goods shipped from another state sues the common carrier for the value of goods lost in transit, his right to recover their value cannot be limited by the contract of shipment, which provided that in consideration of reduced rates the valuation of the property shipped should not exceed $5 per 100 pounds, and the carrier's liability should not exceed that amount, since such contract violates Interstate Commerce Act, § 2, forbidding special rates.

2. A contract of shipment of goods from one state to another stated that the rate charged was special, and given in consideration of a limited valuation placed on the goods, for which the carrier should be liable. The evidence showed that the rate charged for shipment was the regular rate. Held, that the contract of shipment did not limit the consignee's right to recover the full value of goods lost in transit, and the fact that the shipper was required to sign a stipulation that the carrier's liability should not exceed a certain amount, in order to get the rate charged plaintiff, does not show that the rate charged was not the regular rate.

3. Where a contract of shipment provided that all claims for damages by the consignee must be reported in writing to the delivering line within 36 hours after he has been notified of the arrival of the freight, failure to give the notice will not defeat his right to recover for goods lost in transit, since notice of their arrival could not have been given, and written notice will be waived; the carrier having acted on the verbal notice of the consignee that the goods were lost, and delegated a claim agent to search for them.

Appeal from circuit court, Jackson county; C. L. Dobson, Judge.

Action by Fred W. Ward against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Elijah Robinson and Lee B. Ewing, for appellant. Edward L. Massie and Yeager & Strother, for respondent.

ROBINSON, J.

On September 18, 1895, the plaintiff shipped from Pittsburg, Kan., to Kansas City, Mo., over the line of defendant's railroad, a lot of household furniture and three boxes of household goods and notions. One of these boxes plaintiff never received, and to recover the damages occasioned thereby this suit was begun. At the trial, plaintiff recovered a judgment for $300; and defendant, after the usual preliminaries to that end, took the case on appeal to the Kansas City court of appeals. When the case came up for hearing in that court, it was ordered transferred to this, for the reason, as expressed in said order, "that said cause involves the construction of the interstate commerce law, as appears by said respondent's instruction numbered 3 and the briefs of counsel." Defendant filed an answer setting up a contract of shipment, wherein it was agreed between plaintiff and defendant that, in consideration of reduced rate of freight, the valuation of said property shipped should not exceed the sum of $5 per 100 pounds, and that if the same should be lost or destroyed while in transit, or before delivery to the consignee, the defendant would be liable only for the sum of $5 per 100 pounds. The answer further alleged that said property named in plaintiff's petition, and therein charged to have been lost by defendant, did not weigh more than 200 pounds. It is further alleged that by the terms of said contract of shipment the consignor of said property stipulated and agreed "that all claim for damages growing out of the shipment and transportation of said property should be reported by the consignee, in writing, to the delivery line, within 36 hours after the consignee had been notified of the arrival of the freight at the place of delivery," and this plaintiff had failed to do. Plaintiff, by way of reply, stated that in the bill of lading sued on there did appear a limitation valuation clause, but that notwithstanding that fact "the tariff rate actually charged and collected by the defendant for said shipment was, in truth and in fact, according to the regular, published schedule of rates and charges establishment by the defendant, and in force at the time of said shipment, and that the rate so charged was not in fact any reduction from the regular schedule rate from Pittsburg, Kansas, to Kansas City, Mo., and that any rate defendant may purport to have which is greater or less than the schedule rate is unlawful and void, and in violation of an act of congress to regulate commerce; and further states that the provision of said bill of lading purporting to limit the valuation of the property therein described and herein sued for was and is unlawful, without consideration, and void, and in violation of the interstate commerce law in such cases made and provided."

1. Appellant's chief assignment of error is the action of the trial court in giving to the jury an instruction in behalf of plaintiff to the effect that in assessing plaintiff's damages they would disregard the limitation valuation agreement in the bill of lading issued by the defendant company, and that their verdict should be for such amount as they may believe from the evidence was the actual value of the goods sued for, at the point of shipment, not exceeding the sum named in plaintiff's petition. Whether the court, in giving instruction numbered 3, complained of by appellant, thought the limitation valuation clause in the bill of lading, based upon a rate of tariff less than the regular rate, void because in contravention of the interstate commerce act, or whether, from all the testimony, it determined that, notwithstanding the recitation in the bill of lading, no reduced charge or tariff rate was in fact given to plaintiff (and hence no consideration for the promise to accept a value less than the true one for the property shipped, in the event of its loss or damage), there is nothing appearing of record to indicate. For either reason the court's action might properly be sustained. If we look solely to the face of the bill of lading itself, unaided by outside testimony, clearly it must appear as a shipping contract prohibited by the interstate commerce act. The clause in question reads as follows: "In consideration of the rate of tariff, which is less than the regular rate from Pittsburg, Kan., to Kansas City, Mo., being granted and agreed upon, to apply to the shipment herein described, consisting of the articles described below, consigned by G. E. McKim to F. W. Ward, it is hereby agreed by the undersigned, in whose favor this contract is executed, that the valuation of my said goods above described shall not exceed five dollars per hundred pounds; and if the same are lost or damaged while in transit, or before delivery is effected to consignee, and said Mo. Pac. Co., or any other line over which the said goods may be carried under this contract, shall be legally liable for such loss or damage, the amount of value claimed therefor shall not exceed the said sum of five dollars per hundred pounds. [Signed] G. E. McKim."

That the chief and essential aim of the interstate commerce act was to require equality and uniformity in all transportation charges to all persons for similar service, shipping from one state to another, and to prevent unreasonable and undue preferences to persons, corporations, or localities by way of special or reduced rates, is most manifest. By sections 2 and 3 of said act it is provided:

"Sec. 2. That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like...