Wilcox v. Chicago Great Western Railway Co.

• Decision Date: 01 February 1909
• Citation: 115 S.W. 1061,135 Mo.App. 193
• Parties: E. R. WILCOX, Respondent, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

115 S.W. 1061

135 Mo.App. 193

E. R. WILCOX, Respondent, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1909

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

AFFIRMED.

Judgment affirmed.

Frank Hagerman, Inghram D. Hook and Kimbrough Stone for appellant.

(1) The contract of shipment itself recites that the given rate is in consideration of an agreed valuation and that there is a different and higher rate where no valuation is given. Such is a legal contract and where signed, as in this instance by the parties, is prima facie evidence of the truth of the statements therein. Hancock v. Railway, 111 S.W 519; Cable Co. v. Rothgaber, 113 N.W. 88; Railway v. Greer, 58 S.E. 782. (2) Nor does it follow that because the rate charged in a given contract is the same rate charged everybody who ships under like contracts it is not a reduced rate. If the carrier have in force and for practical operation a higher rate for shipments made without contracts for release, than the rate charged in the given contract containing a release, then the given contract has a sufficient consideration to support the release when the reduced rate is given in view of the release. Duvenick v. Railroad, 57 Mo.App. 550; Powder Co. v. Railroad, 101 Mo.App. 442.

House & Manard for respondent.

(1) The contract was properly excluded from consideration by the jury because the schedule of rates was not posted in the station at Dearborn. Railroad v. Sloop, 200 Mo. 198; Meyers v. Railroad, 120 Mo.App. 288; Hancock v Railroad, 111 S.W. 519; Griffin v. Railway, 115 Mo.App. 549; Thompson, Payne & Co. v. Irwin, Allen & Co., 76 Mo.App. 418; Bradley v. Insurance Co., 90 Mo.App. 349; City v. Gold, 91 Mo.App. 32; Butts v. Long, 94 Mo.App. 687; Trustees v Hoffman, 95 Mo.App. 488; Steele v. Johnson, 96 Mo.App. 147; Gebhardt v. Transit Co., 97 Mo.App. 373; Williams v. Railroad, 106 Mo.App. 61; Lee v. Railroad, 107 Mo.App. 372; State ex rel. v. Road Co., 116 Mo.App. 175. (2) The contract is void on its face. Because it does not provide for a reduced rate of freight. Ficklin v. Railroad, 117 Mo.App. 221; Sloop v. Railroad, 117 Mo.App. 204; Kellerman v. Railroad, 136 Mo. 177; Kellerman v. Railroad, 68 Mo.App. 255. (3) The contract is void because it does not give the shipper the option to ship under a non-release contract. Ficklin v. Railroad, 117 Mo.App. 221; Paddock v. Railroad, 155 Mo. 226; Duvenick v. Railroad, 57 Mo.App. 550. (4) The contract is void because it does not fix the value of the animals at a liquidated sum. Doan v. Railroad, 38 Mo.App. 408; Kellerman v. Railroad, 68 Mo.App. 255; Kellerman v. Railroad, 136 Mo. 177; Livery Co. v. Railroad, 113 Mo.App. 144. (5) The contract does not state the value of the animals shipped. Kellerman v. Railroad, 136 Mo. 177; Livery Co. v. Railroad, 113 Mo.App. 144; Hancock v. Railway, 111 S.W. 519. (6) The contract does not apply to the shipment in question because the horses were shipped by the car and not by weight. Hancock v. Railway, 111 S.W. 519.

OPINION

ELLISON, J.

Plaintiff shipped a number of mules to Kansas City, Missouri, over defendant's railway. One of these was killed, through defendant's negligence, and he brought this action for damages in the sum of one hundred and eighty-five dollars, for which he recovered judgment in the trial court.

The defendant relied upon a special written contract of shipment wherein it claims that, in consideration of a reduced rate of freight, the mule was valued at $ 100, and that it was agreed that in case of loss the defendant should not be liable for a greater amount than that sum. The provisions of this contract are as follows:

"2. The rates provided in the tariffs of the carrier and the rate given above are based upon the following values of animals' names, to-wit: Each horse or pony (gelding, mare or stallion), mule or jack, $ 100; each ox, bull or steer, $ 50; each cow, $ 30; each hog or calf, $ 10; each sheep or goat, $ 3.

"3. Where the value declared herein by the shipper exceeds the value given in paragraph two above, an addition of twenty-five per cent to the rate will be made and collected for each one hundred per cent or fraction thereof additional declared value per head.

"4. In case of loss or damage to said animals the carrier shall not be liable in excess of said agreed and declared valuation upon each animal lost or damaged. . . ."

Preceding this stipulation was a statement that the rate of freight which was to be charged was seven cents per one hundred pounds, when in point of fact the animals were not shipped by weight, but as animals without regard to weight. No rate of charge is named in the contract; and the provision that for an animal of higher value a certain per cent greater rate than the rate given the shipper would be charged is meaningless, for the reason that no rate has been provided for. [Hancock v. Railway, 131 Mo.App. 401; 111 S. W. 519.] The contract in this case, like that in the case just cited, shows that it has been carelessly drawn on a printed blank form and there have not been sufficient changes made in such form, nor sufficient filling of blanks, to make it accomplish the purpose sought to be given it by defendant in the argument. In some respects it is unintelligible; as an instance, though the shipment was mules, it has "horses" filled in in the blank for "kind of animals"; and under the head of shipper's value, it has the blank filled with the character "$" and the letters "Trf."

Again it seems to be the rule in this State that contracts fixing a specific valuation of the property shipped, if it turns out to be less than the real value, must be based on a consideration such as, for instance, a reduced rate of freight. [McFaddin v. Railway, 92 Mo. 343.] In this case a reduced rate was not given, nor was one provided for or mentioned in the contract, and for...