Duvenick v. Missouri Pacific Railroad

Ellison, J.

On trial of this cause plaintiff recovered damages from defendant for negligent transportation of a car load of horses from California, Missouri, to St. Louis. The negligence complained of, as narrowed down by the instructions, consisted in a refusal to water and feed the horses or to permit plaintiff to water and feed them.

The stock was shipped under a special contract which recited that the rate therein agreed upon was a reduced rate and that in consideration thereof the shipper released defendant from much of the obligation it would otherwise have been under without the contract. The delay here was caused by a washout and floods, which were released by the contract. But while the delay was finally conceded by plaintiff to have been excusable he charged that he should have been permitted, while the train was detained at Chamois, to feed and water the horses, and that in consequence of not doing so they were damaged and injured — that they became restless, nervous and uncontrollable so that they inflicted injury upon themselves. The contract, however, among other provisions, provided that no claim for damages should in any case exceed $100, while in this case plaintiff was permitted to show the value of one of the horses (the one killed) was $250. Contracts like this, limiting the liability to a certain sum, are upheld by the courts, provided they are based upon a valuable consideration. Harvey v. Railroad, 74 Mo. 538; McFadden v. Railroad, 92 Mo. 343.

A reduced rate of freight is a sufficient consideration to support such contract. But it has been decided that unless it be, in fact, shown to be a reduced rate the contract is without consideration. McFadden v. Railroad, supra.

In order to show that the rate in this contract was a reduced rate, defendant introduced two witnesses, the local agent and the clerk in his office. The record of this part of the trial shows this condition of affairs, though, perhaps, not in the order in which I now state it. The witness stated that this was the usual and customary rate on such shipments when such contracts were signed; and he also stated that he had never charged any other rate, though it clearly appears from the whole of this portion of the record, that the reason he never charged any other rate was because he always took shipments under contracts similar to the one in this case. It clearly appears that in the absence of a contract there was a higher rate. In other words, but for the contract a higher rate would be charged. The witnesses were not permitted to state this in a way fair to the defendant. The defendant asked several questions looking to the same end on this subject and the witnesses were not permitted to answer. The several rulings on this branch of the case were prejudicial.to defendant’s interests and were against what we conceive to be its rights in the premises. The defendant’s contract releasing down to a valuation of $100, is only valid if based on a consideration of the rate charged being a reduced rate. If it is the customary or usual rate without regard to a special contract of the nature of this one, or if defendant will only ship on such contracts, at the one rate named therein, then it is not a reduced rate. Defendant, then, ought to be permitted to show what the courts have said he must show, viz.: that the rate named in the bill of lading is what it purports to be, a reduced rate. If we can gather correctly the idea maintained by plaintiff, it is that since the rate charged here is the same rate charged everybody who ships as this• plaintiff 'Shipped, it is not a reduced rate. This does not follow. Every one who has signed a contract similar to the one here has gotten the same rate as charged here. But that may be for the reason that they signed the contract. It may be, as was offered to be shown, that there is a different and higher rate in the absence of a release contract. If the defendant has two rates, one for release contracts and one without them, and it happens that shippers invariably choose the less rate with the release, it does not follow that such rate is the usual rate charged every one, in the sense in which it is now being considered. It is so made the usual rate from the choice of the shipper and not because there is no other rate. In other words, it can not, with any fairness, be said that for the reason that only one rate is used under certain conditions, there may not be, another rate in the absence of those conditions. If, therefore, the defendant, upon another trial, can make it appear, to the satisfaction of the triers of the facts, that it had in force and for practical application a higher rate for shipments made without contracts of release, then this contract has a consideration to support it and plaintiff should not be permitted to recover in excess of $100, for any one animal.

It is perhaps unnecessary to say anything concerning most of the other matters of objection urged by defendant, since the same points in all probability will not arise on another trial, the plaintiff having abandoned most of them as shown by the instructions which omitted from the case all alleged negligence except the failure to give plaintiff an opportunity during the delay of the train to water and feed the horses. There was abundant evidence to support a finding for plaintiff in this respect.

We have discovered no objection to the court's action on instructions, of any substantial nature. Plaintiff's instruction number 2 should be confined to a lack of offering an opportunity for plaintiff himself or his servants to feed and water his stock, since the contract puts that duty upon him. It is not proper to load the instruction with an alternative of what defendant should have done as to feeding, though perhaps under the facts of this case it would not be reversible error.

We discover no error as to the court's ruling either in the evidence or instructions as to the notice of damage. We. can see nothing looking to a compromise in the evidence allowed as to conversations with defendant's agent at St. Louis concerning the loss.

The questions in this ease are few. If defendant negligently refused plaintiff an opportunity to feed and water at places of delay when such opportunity might have been allowed and the damage and injury resulted from this, plaintiff should recover. As to the amount of plaintiff’s damages, if the contract in evidence has a consideration such as we have discussed, then plaintiff's recovery will be limited by the contract.

Eor the errors mentioned the judgment will be reversed and the cause remanded.

All concur.