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goods; or, in case he cannot get possession, for the value thereof, together with $30 damage and costs of suit in the case.
"DAVID V. FINDLEY,
"By CUMMINS & HANNERS, Attys. for Plaintiff."
Trial had at the May term of court for 1884, before the court with a jury. The following is the contract between the plaintiff and the Kansas Pacific Railway Company, (Union Pacific Railway Company,) which was offered in evidence by plaintiff :
"Car, No. 4,117. Initials, I. & St. L.
"STATE LINE STATION, April 11, 1880. "Agreement made between the Kansas Pacific Railway Company, of the first, and D. V. Findley, of the second part, witnesseth: That whereas, the said Kansas Pacific Railway Company, as a common carrier, transports livestock only as per annexed tariff, now, considering that the said party of the first part will transport for the said party of the second part one (1) car-load of H. H. goods and two (2) horses from State Line station to Minneapolis station at the rate of $35 per car-load, the same being a special rate, lower than the regular rates mentioned in said tariff, the said party of the second part hereby relieves said party of the first part from the liability of a common carrier in the transportation of said stock, and agrees that such liability shall be only that of a private carrier for hire. And said party of the second part hereby accepts for such transportation the cars provided by said company, and used for shipment of said stock, and hereby assumes all risk of injury which the animals, or either of them, may receive in consequence of any of them being wild, unruly, or weak, or maiming each other or themselves, or in consequence of heat or suffocation, or other ill effects of being crowded in the cars, or on account of being injured by the burning of hay, straw, or other material used by the owner for feeding the stock, or otherwise; and also all risk of damage which may be sustained by reason of any delay in such transportation, and all risk of the escape of any portion of said stock, or of loss or damage from any other cause or thing not resulting from the willful negligence of the agents of the said party of the first part. And the said party of the second part further agrees that he will load and unload said stock at his own risk, and feed, water, and attend the same at his own expense and risk while it is in the stock-yards of the party of the first part awaiting shipment, and while on the cars or at feeding or transfer points, or where it may be unloaded for any purpose. And it is further agreed that said party of the second part will see that said stock is securely placed in the cars furnished, and that the cars are safely and properly fastened so as to prevent the escape of said stock therefrom. And it is further agreed that in case the said party of the first part shall furnish laborers to assist in loading and unloading said stock they shall be subject to the orders and deemed the employes of the said party of the second part while so assisting. And for the consideration before mentioned said party of the second part further agrees that, as a condition precedent to his right to recover any damages for loss or injury to said stock, he will give notice in writing of his claim therefor to some officer of the said party of the first part, or its nearest station agent, before said stock is removed from the place of destination above mentioned, or from the place of delivery of the same to said party, and before such stock is mingled with other stock. The evidence that the said party of the second part, after a full understanding hereof, assents to all the conditions of this contract is his signature hereto. "FRANK C. JACKSON, Agent for the Company "D. V. FINDLEY, Shipper."
"RULES AND REGULATIONS FOR THE TRANSPORTATION OF LIVE-STOCK. "Blood animals, or animals deemed especially valuable, will be carried only on special contract, and agents are not allowed to receive and ship such animals until a proper contract is made between the owner or consignor and the general freight agent. Live-stock not especiaily valuable will be rated at first-class rates upon the following estimated weights:
"Hogs, sheep, lambs, and calves will be estimated at actual weight, but not less than 280 lbs. each, and be charged first class. One will not be charged less than 75 cents however short the distance. Tariff rate per car on this shipment from state line to Minneapolis, $60.00. In case damages occur in transporting live-stock for which the company may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount shall not exceed for a stallion, $200; horse, $100; mule, $65; cattle, $50; and other animals, $20. At the above classification the company agrees to take proper care of the animals, and assume the liability, not exceeding the amounts given above, for loss or damage which may occur to them through the fault or negligence of its officers, agents, or employes while in transportation over its road. In case, however, the owner or consignor agrees to save the company from liability for loss or damage occurring from any or all of the causes enumerated in the following contract, and also agrees to load, unload, feed, water, and attend to the stock himself, a special rate will be given upon ordinary stock in car-load lots. Persons not accompanying stock on same train, but preceding it or following after on passenger or freight train, will not be passed on stock contract, but be charged regular passenger fare, nor will money be refunded or passes given for fares thus paid. Agents are not authorized to agree to forward live-stock at any specified time."
The following receipt was also offered in evidence by the plaintiff : No. 130.
Mr. D. V. Findley,
A. O. 13.
MINNEAPOLIS, KS., STATION, April 13, 1880.
To Union Pacific Railway Company, Dr.
For transportation from
This expense bill must be properly filled up.
Charges must, in all cases, be paid in cash on delivery of goods.
(3) Claims for overcharge, loss, or damage should be sent to the general freight agent, accompanied by original expense bill, bill of lading, and full particulars.
Received payment for the company,
A. G. SMITH, Agent.
The following is the bill made out by the defendant, A. G. Smith, for the freight upon the potatoes, vinegar, salt, and bacon, shipped by plaintiff to Minneapolis, which freight the plaintiff refused to pay:
(1) This expense bill must be properly filled up.
(2) Charges must, in all cases, be paid in cash on delivery of goods. (3) Claims for overcharge, loss, or damage should be sent to the general freight agent, accompanied by original expense bill, bill of lading, and full particulars.
Received payment for the company,
The jury returned a verdict for plaintiff and assessed his damages at the sum of five dollars. They also made the following special findings of fact:
"Question 1. Was there not in the car in question a quantity of bacon, potatoes, salt, and vinegar which, or a part of which, the plaintiff sold or endeavored to sell after his arrival in Minneapolis? Answer. Yes. Q. 2. Was not the rate of the railroad company for the transportation of potatoes, bacon, salt, and vinegar greater than for the transportation of household goods? A. In this case, no. Q. 3. Did not the increased rate of the railroad company upon the salt, potatoes, vinegar, and bacon, over and above the rate upon household goods, amount to $11.88, and did not Findley refuse to pay the same? A. First question, no; second question, yes. Q.4. Was not the defendant, Smith, the agent of the railroad company, and did he not for the
company demand the increased rate, and in making said demand did he not conform to his duties as such agent? A. Yes.
"W. M. SMITH, Foreman."
Upon the return of the verdict the defendant filed his written motion to set aside the answers of the jury to questions 2 and 3, which motion was overruled. He next filed his motion for judgment in his favor upon the special questions and answers, which motion was also overruled. Thereupon the defendant filed his motion to vacate and set aside the verdict, which motion was overruled. The court then entered judgment in favor of the plaintiff that at the time of the commencement of the action he was the owner of and entitled to the possession of the property described in his petition, and that he have and recover of the defendant the sum of five dollars, and his costs in the action. To the ruling and judgment of the court the defendant excepted, and brings the case here.
J. P. Usher and Charles Monroe, for plaintiff in error.
HORTON, C. J. These facts appear to be undisputed: On April 7, 1880, David V. Finley chartered a box car from the Louisville, New Albany & Chicago Railway Company in which to ship two horses and his household goods from Bloomington, Indiana, to Minneapolis, in this state. He loaded the car at Bloomington with two horses, some household goods, and the potatoes, bacon, vinegar, and salt in controversy. He paid the charges to Green Castle, Indiana, amounting to $23.50, and took a receipt, which set forth that the car contained household goods and stock. On April 8, 1880, he signed a contract with the Indianapolis & St. Louis Railway Company at Green Castle, Indiana, for the shipment of "one car H. H. goods and stock" from Green Castle to East St. Louis, Illinois. On April 9, 1880, he signed a contract with the Wabash, St. Louis & Pacific Railway Company to forward over their road one car with the following freight, to-wit: "H. H. Gds. and stock from the St. Louis Union Depot to Kansas City, at the rate of $40 per car;" on April 11, 1880, he entered into a written agreement with the Kansas Pacific Railway Company (Union Pacific Railway Company) to transport over the road of the company "one car-load of H. H. goods and two horses from the State Line station to Minneapolis station, at the rate of $35 per car-load, the same being a special rate lower than the regular rates" mentioned in the tariff annexed to the contract. He arrived with car at Minneapolis on April 12, 1880, after dark. He removed the horses and household goods on April 13th. He paid the agent of the Union Pacific Railway Company at Minneapolis $100 for freight, being $65 back charges on the car, and $35 for transportation over the Union Pacific Railway from Kansas City, or the state line, to Minneapolis, and being all that was then demanded. Soon after the agent had collected the $100 freight he looked into the car transported by the company, and discoverd potatoes, bacon, vinegar, and salt, which he claimed were not house
hold goods, and therefore immediately demanded of Findley $11.88 additional, as freight upon the potatoes, bacon, etc. Findley refused to pay this extra or additional freight. Smith refused to deliver the goods, and thereupon Findley replevied the same.
The rate on household goods from Kansas City to Minneapolis on the Union Pacific Railway was 17 cents per 100, and on the other goods, for which the additional freight was demanded, the rate was 45 cents per 100. It is claimed by the railway company that potatoes, bacon, vinegar, and salt are not household goods, and that there was no right on the part of Findley to put them into the car as such, and that, having put them into the car, without the knowledge of the railway company, he should pay full tariff rates on the same. In support of this claim, it is stated by counsel that "to facilitate the settlement of the country the company has a rate for the transportation of household goods and farming utensils at about one-third of its regular rate; that the motive for giving this reduced rate is to enable persons of limited means to locate themselves in the unsettled part of the state at a moderate expense, with their household effects; and that a very low rate was made by the railway company over its road to influence and promote such settlement."
The questions are-First, whether the potatoes, bacon, vinegar, and salt are to be considered household goods; and, second, if not, whether the contract executed between Findley and the Union Pacific Railway Company for the carrying of his household goods and two horses in the car of the Indianapolis & St. Louis Railway Company over its road from Kansas City or the state line to Minneapolis covered the potatoes, bacon, etc.
Bouvier defines household goods to mean "everything of a permanent nature (that is, articles of houshold which are not consumed in their enjoyment) that are used or purchased, or otherwise acquired, by a person for his house, but not goods in the way of his trade. Plate will pass by this term, but not articles of consumption found in a house; as malt, hops, or victuals." Volume 1, p. 758. 1 Abb. Law Dict. 575, gives a like definition. Worcester calls the furniture of a house, and utensils convenient for family, "household stuff. The evidence tended to show, and the jury found as a fact, that a part of the bacon, salt, and vinegar transported in the car Findley sold, or endeavored to sell, after his arrival in Minneapolis. Under all the facts of the case, we think that the term "household goods" does not include the potatoes, bacon, etc., replevied. We also think that these articles. were not covered by the written contract between Findley and the Union Pacific Railway Company. The latter company received the car containing the household goods, horses, potatoes, bacon, etc., from a connecting line, and were not bound to examine the contents of the car before transporting it to ascertain if it contained other property than that described in the contract. It had the right to rely upon the contract with Findley as to what the car contained. The railway com