Brown v. Wabash, St. Louis & Pacific R'y. Co. , 1885 Mo. App. LEXIS 380 ( 1885 )

Opinion by

Ellison, J.

Carriers are not responsible for an injury to animals resulting from their own inherent propensities. Potts v. Ry. Co. (17 Mo. App. 394.) Yet they are bound to provide suitable, safe and secure cars for the transaction of their business. Ibid, and cases cited.

And a contract, though signed by the shipper, agreeing to release the carrier, will not exonerate him from resulting damage or from his implied duty to furnish suitable means to safely transact his business. Ib. Co. v. Pratt, 22 Wall. 123 ; Welch v. Ry. Co., 10 Ohio St. 65; I. B. & W. Ry. Co. v. Strain, 81 Ill. 504.

The court’s first instruction for plaintiffs, in connection with those for defendant, is in harmony with the rule above stated. The case in this respect was properly submitted to the jury. Plaintiff’s second instruction is a correct abstract proposition, but if it was intended to apply to the contract limit of one hundred dollars, for each animal in case of loss, it was improper as we shall see. The written contract which is admitted in the replication to have been executed by plaintiffs, must be taken to be the contract between the parties, and they will be bound by its provisions in the absence of fraud or imposition. Moore et al. v. Henry et. al., decided at this term. Plaintiff’s plea that he did not know anything about the stipulations contained in said contract and that he “did not know there was a stipulation therein, limiting the amount to be recovered, in case of loss, to one hundred dollars,” is not good. Plaintiffs were bound to examine and ascertain the contents of the contract, and if they accept it without objection they are bound by its terms. St. L., K. C. & N. Ry. Co. v. Cleary, 77 Mo. 634; O’Bryan v. Kinney, 74 Mo. 125.

There is no pretense of any fraud in this case, and we cannot see why the contract was not fairly entered into, or what room the court had for submitting to the jury, as it did, whether it was a contract fairly made. The execution of the contract being admitted, no fraud, imposition, or mistake being pleaded or proved to avoid it, the court should have limited jfiaintiffs’ right of recovery to one hundred dollars.

It is settled in this state by the decision of Haney v. Ry. Co. (74 Mo. 538), that a common carrier may, by contract, limit the amount of liability, in case of loss, to a specified sum agreed upon. Judge Hough in that case says : “ We do not regard a contract limiting the right of recovery to a sum expressly agreed upon by the parties as representing the true value of the property shipped, as a contract, in any degree exempting the carrier from the consequences of its own negligence. Such a contract, fairly entered into, leaves the carrier responsible for its negligence, and simply fixes the rate of freight and liquidates the damages. This, we think, it is competent for the carrier to do.”

This case is approved in the later one of Hart v. Ry. Co. (112 U. S. 331). Justice Blatchford says in that case that “the limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier' the measure of care due to the value agreed upon. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater.”

Judging from the wording of. plaintiff s’ fourth and fifth instructions, as to the contract limiting the liability being “fairly entered into,” we supposed the circuit court considered it was complying with the rule laid down in Harvey v. Ry. Co., supra, as Judge Hough makes use of that language in his opinion. But as applied to this case it is misleading, as the jury would doubtless be led to suppoe they had a right to find it was not fairly entered into. As seen above there was no issue on such a question, and the court should have limited the recovery absolutely to the one hundred dollars.

We do not believe as contended by appellant that the terms of the contract of shipment, as pleaded in defence, covers the loss complained of. Those portions of the contract applicable are as follows: “Third. The party of the second part agrees that as soon as said live stock is.placed in said cars, he will see that all the doors and openings in.said cars are closed and so fastened, and afterwards kept so closed and fastened, as to prevent the escape of said stock therefrom, and the party of the second part, in consideration of this agreement, hereby releases the party of the first part and all connecting lines from all claims for damage or loss sustained by the party of the second part in consequence of the escape of any of said live stock through doors and openings in said cars. Fourth. It is agreed that neither the party of the first part nor any connecting lines shall be responsible for any damage or injury sustained by said live stock from suffocation while in said cars, or for any injury caused from overloading cars, or from fright of animals, or from the crowding of one upon or against another. Eleventh. The party of the second part further agrees to release, and does hereby release the party of the first part and connecting lines from all claims for damage or inj ary or loss of said live stock, from any defects in the doors of said cars or their fastenings, and also from any injury to said stock, caused from defects in the slats on said cars, or from the manner in which said slats are placed on said cars, and from all injuries which said stock may sustain from kicking or goring each other while in said cars, or from kicking their feet through the slats or sides of said cars.”

The loss here is not because the doors and openings were not closed and fastened, and the stock did hot escape through the doors and openings (by openings is not meant an opening broken into the car, but those usually found in freight cars). Neither did this loss occur from suffocation, nor was there any injury to the stock caused by overloading, nor was there any by fright or crowding one upon another. So far as the evidence shows the animal was not injured at all. Nor was the loss occasioned by a defect in the doors or fastenings, or in the slats, or from kicking or goring one another. The terms of this contract evidently have reference to injuries happening to the animal by hurting itself in any of the ways provided against, and to its loss by escape through the doors in the cars. This contract does not cover and was not intended to cover a case where an end of a car would come off and permit an escape of the stock. A carrier may well provide against its liability for injuries to live stock arising from their inherent propensities and vicious disposition. Indeed there would be no liability from such cause, in the absence of a contract. Polls v. Ry. Co., supra. But such carrier cannot escape, by contract or otherwise, the duty to furnish cars of sufficient strength to transport the freight it receives. Live stock in their restless disposition may crowd or tramp one another, or may get their legs caught in the slats of the cars, or in fighting may gore each other, etc. Liabilities for such injuries are provided against in the contract. But the car should nevertheless be of sufficient strength to hold them in. The defects in the slats, etc., spoken of in the contract, are such defects from which the stock receive injury. These provisions do not cover an escape of the stock resulting from a defective construction of the cars. As remarked, the contract does not cover an escape of the cattle except through the doors or openings in the car, for these the shipper is required to keep fastened.

Another error appears in tjie record, and being insisted upon by the appellant, we would for that alone be compelled to remand the cause. As will be seen from the statement, the contract of shipment provides that no claim for loss or damage shall be allowed or sued for, unless written notice, verified by affidavit, shall be given to the general freight agent of defendant at St. Louis, Mo., within five days after the removal of the stock from the cars. Such provisions in contracts are held reasonable and valid in this state. Dawson v. Ry. Co., 76 Mo. 514. There is no evidence whatever of a compliance with this provision of the contract. The only reference to it is in the testimony of Joseph Brown. He says on that subject: “After unloading the mules I kept them in the pen and went to see McBeth, who I was told was the proper party to go to, as the freight agent of the defendant. He told me to sell the mules and make out a claim, and if they were in fault they would pay for it. I came home about the 11th or 12th of March, and made out a claim as soon as I came back.” On cross-examination he stated that “the stable men at the stock yards told me that the man I wanted to see was McBeth. He told me to make out a claim, swear to it and send it in, and if the company was at fault it would pay for the mule. I made it out and sent it to him.”

There is nothing in this testimony to show that McBeth was defendant’s freight agent, or that he was authorized to bind the company by a line of conduct waiving the terms of the contract. The declarations of McBeth himself are not sufficient to establish his agency. For if it were so, it could readily be seen an agency might be created by the mere false statement of any adventurer, without knowledge or authority of the principal. The fact that the " stable men at the stock yards ’ ’ told him to see McBeth will certainly not be thought sufficient to establish an agency. It is not even stated that this man McBeth was found in defendant’s offices, or that defendant knew of him, or that he was in their employ. There is nothing from which we can infer he was an agent of defendant.

The judgment is reversed and the cause remanded'.

All concur.