Mering v. Southern Pacific Co.

LORIGAN, J.

This appeal is before us on a hearing granted after a decision of the district court of appeal for the third appellate district, affirming the judgment and order appealed from.

Plaintiff sued to recover from defendant the value of a certain mare shipped by him over the road of the defendant from the city of Woodland to Redwood City in this state. The com

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plaint alleged the shipment of the mare; that plaintiff did not accompany her and did not retain exclusive or any control over her in transit; that defendant in transporting said mare to said Redwood City was grossly negligent and grossly failed to properly care for said mare, by reason whereof said mare arrived in Redwood City about forty-six hours after being shipped, in a gaunt and emaciated condition, and thereafter on the following day died from the effects of said treatment. Judgment was asked for the sum of $508.00, the alleged value of the animal.

The defendant in its answer admitted the shipment of the mare; denied the allegations of carelessness and neglect and averred that the mare was shipped under a certain contract attached to the answer as part thereof, in which contract plaintiff had stated the value of the mare to be twenty dollars, agreed to accompany her and feed and water her, and further agreed that in no event “is first party (defendant) ... to be liable for any loss or damage to said live-stock not proven to have been caused by the gross negligence of the first party in performance of, or failure to perform, some duty which under the terms of this contract is due from first party to second party as to said live-stock;” and averred faithful and complete performance of said contract “and all of the obligations imposed upon it by law as a common carrier or otherwise ;” that “defendant assumed liability only to the extent of the agreed valuation of said mare as stated in said contract, to wit, the sum of $20.00, and that the compensation for transportation of said mare was based on that value.”

The court found that the mare was shipped under the contract as alleged in the answer, found against plaintiff as to all of his averments of neglect and carelessness of .the defendant, and also found that “it is not true that the condition of said mare or the death of said mare was due to any act or omission of said defendant ... or that the said mare died from the effects of any treatment of said defendant or from the effects of any act or omission of said defendant . . .; and it is not true that plaintiff has been damaged in the sum of $508.00, or any other sum, by the defendant.”