Goodman v. Missouri, Kansas & Texas Railway Co. , 71 Mo. App. 460 ( 1897 )

Ellison, J.

Plaintiff shipped his household goods over defendant’s road from Dallas, Texas, to Kansas City, Missouri. He alleges that he received them in Kansas City in a damaged condition, the damage being the result of defendant’s careless handling. He brought this action against defendant, alleging the damage to the furniture tobe $43.50. 'He recovered that sum, with six per cent interest added. It appeared in the evidence given in plaintiff’s behalf that there was a written contract of shipment, whereby in consideration of a reduced rate, plaintiff placed a valuation of $5 per hundred pounds on the goods shipped and agreed that in case of damage done to the goods by defendant he should only recover, for actual damage done which in no case should exceed the valuation aforesaid.

Common carriers: action at common law: special contract: ages. It appearing that the shipment was made under a special contract, such contract will govern, notwithstanding the action, as brought, seeks to .. _ hold defendant on its common law liability as a carrier. We see no reason why the rule as stated in the following cases of suits on quantum meruit, where a special contract is shown, should not apply. Hull v. Cooper, 36 Mo. App. 393; Iron Works v. Halverson, 48 Mo. App. 391; Mansur v. Botts, 80 Mo. 651; Plummer v. Trost, 81 Mo. 430.

By the terms of the special contract shown in this case, plaintiff could not have recovered if there had been a total loss of any article of furniture more than $5 per hundred pounds. It is clear that for a partial loss of such article he should not recover on a basis of the actual value of the goods, but only the proportionate value fixed by the contract, and so the trial court instructed the jury. Pearse v. Steamship Co., 20 Fed. Rep. 285; Railway v. Lesser, 46 Ark. 236. But the jury seem not to have heeded such instruction. The evidence in plaintiff’s behalf tended to show the actual loss or damage to the goods, without reference to the limit fixed by the contract and the verdict shows that he was permitted to recover the actual amount of damage without reference to a proportionate reduction made necessary by the -contract.

Uüma|el!,rintfrest' 2. It is also contended that error was committed in directing the jury to allow interest on the amount of damages shown. The point is not well taken. In this state there are eases where interest is recoverable as a matter of right. And others where the jury may or may not allow interest as they see fit. State ex rel. v. Hope, 121 Mo. 34. There are yet others where interest can not be .allowed. To the’latter class belong damages for killing stock, or setting out fires. DeStieger v. Railway, 73 Mo. 33; Meyer v. Railway, 64 Mo. 542; State ex rel. v. Harrington, 44 Mo. App. 297. But this case seems to belong to the first class. It seems to have been so ruled in the cases of Dun v. Railway, 68 Mo. 278, and Gray v. Packet Co., 64 Mo. 50.

Defendant has cited us to State ex rel. v. Hope, supra, in support of his contention that the jury should not have been directed to allow interest. We think that case is not in point. That case gives an authoritative and undoubtedly correct interpretation to the statute. R. S. 1889, sec. 4430. But that case was where goods had been seized and converted and though the supreme court had not, for many years (possibly not since its enactment) been giving effect to the statute, yet it must now be heeded in all cases embraced within its terms. But, as before stated, we think this case is not within its meaning. This case is really for damages for breach of contract of safe shipment. It falls closer to such in character of cases as Padley v. Catterlin, 64 Mo. App. 629. And it is at any rate governed by the Dun and Gray cases, supra.

The judgment is reversed and cause is remanded.

All concur.