Ward v. Missouri Pacific Railway Company

• Decision Date: 12 November 1900
• Parties: WARD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

58 S.W. 28

158 Mo. 226

WARD v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

November 12, 1900

Appeal from Jackson Circuit Court. -- Hon. C. L. Hobson, Judge.

Affirmed.

Elijah Robinson and Lee B. Ewing for appellant.

(1) Defendant's demurrer to the evidence should have been sustained. The clause in the bill of lading requiring notice was not complied with and the court should have directed a verdict for the defendant. Rice v. Railroad, 63 Mo 314; Harned v. Railroad, 51 Mo.App. 482; Sprague v. Railroad, 34 Kan. 347; Railroad v. Koch, 47 Kan. 753; Greenwood on Public Policy, rule 455, p. 517. (2) The court committed error in giving plaintiff's instructions numbered 2 and 3, and in refusing defendant's instructions numbered 4 and 5. The limitation valuation clause in the bill of lading, under which these goods were shipped, was valid and binding, and the court should have so instructed the jury. Express Co. v Foley, 46 Kan. 457; Railroad v. Simpson, 30 Kan. 645; Harvey v. Railroad, 74 Mo. 538; McFadden v. Railroad, 92 Mo. 343; Squire v Railroad, 98 Mass. 239; Graves v. Railroad, 137 Mass. 33; Hart v. Railroad, 112 U.S. 331; Duncan v. Railroad, 4th Inters. Com. Rep. 385; Inters. Com. Com. v. Railroad, 145 U.S. 263.

Edward J. Massie and Yeager & Strother for respondent.

(1) No notice in writing of the loss of the box sued for was required by the bill of lading. Wilson v. Railroad, 23 Mo.App. 50; Leonard v. Railroad, 54 Mo.App. 293. (2) Even if it be held that notice was required in the case at bar, still the notice given was sufficient. Rice v. Railroad, 63 Mo. 314; Hess v. Railroad, 40 Mo.App. 202; Harned v. Railroad, 51 Mo.App. 482; Richardson v. Railroad, 62 Mo.App. 1. (3) The evidence shows that as a matter of fact no reduced rate was given. The agreement fixing the value of goods in case of loss or damage was therefore without consideration, and void. McFadden v. Railroad, 92 Mo. 343; Kellermann v. Railroad (Mo.), 34 S.W. 41. (4) The shipment in question is interstate commerce and governed by the interstate commerce law and its amendments. Any reduction of freight rates would, therefore, have been illegal and void; and a contract based on an illegal consideration is void. 24 U. S. Stat. at Large, 379; Supplement to U. S. Rev. Stat. (2 Ed.), 529; 25 U. S. Stat. at Large, 855; Sup. to U. S. Rev. Stat. (2 Ed.), 684.

ROBINSON, J. Brace, P. J., and Valliant, J., concur; Marshall, J., concurs for the reasons expressed in the second, third and fourth paragraphs of the opinion.

OPINION

ROBINSON, J.

On September 18, 1895, the plaintiff shipped from Pittsburg, Kansas, 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 five dollars per hundred 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 five dollars per hundred 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 claims for damages growing out of the shipment and transportation of said property should be reported by the consignee in writing, to the delivering 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 established 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 provisions 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."

I. 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, Kansas, 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 the 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 sum of five dollars per hundred pounds."

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 kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.

"Sec. 3. That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation or locality or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." [24 U.S. Statutes at Large, 379.]

By section 6 of an act to amend in part said original act of February 4, 1887, passed March 2, 1889, it is provided:

"Sec. 6. That every common carrier subject to the provisions of this act shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route. ...