Louisville & Nashville Railroad v. Meyer , 78 Ala. 597 ( 1885 )

STONE, C. J.

The appellant railroad company received, at one of its depots, a package of freight, consigned to the appellee at Bluffton in the State of Indiana, a point beyond the terminus of its own line of railroad. It received pre-paid,, freight for the whole distance, and executed a bill of lading,1 binding itself to deliver the freight at the place of consign-' ment. The consignee brought this action, and, averring that the goods were not delivered, sued to recover their value. There were verdict and judgment for the plaintiff.

The first charge asked by the defendant, and refused by the court, asserts the proposition, that unless the plaintiff demanded the goods at the point of destination — Bluffton, Indiana' — from the carrier at that point, then there can be no recovery. This charge was rightly refused. The law”does not require a useless thing; and there is testimony tending to prove that the goods were lost before they reached their destination. If that be true, a demand would have been fruitless, and need not have been made. Demand and refusal are but a method of proving a default; and that default may be proved by other methods, as well as by demand and refusal.

The rule is settled in this State, that “ where a carrier receives goods directed [consigned] to a place beyond the terminus of his own route, without limiting his liability by ex-| press agreement, by the acceptance of the goods he assumes! the duty and incurs the obligation to deliver them safely at the', point of destination.” — M. & G. R. R. Co. v. Copeland, 63 Ala. 219. And this is the declared rule in a majority of the best considered cases. — Ill. Cent. R. R. Co. v. Copeland, 24 Ill. 332; Ill. Cent. R. R. Co. v. Johnson, 34 Ill. 389; So. Express Co. v. Shea, 38 Ga. 519; Little v. Semple, 8 Mo. 99; Hill Man. Co. v. B. & L. R. R. Co., 104 Mass. 122; Railroad Co. v. Pratt, 22 Wall. 123 ; Weed v. S. & S. R. R. Co., 19 Wend. 534; Burtis v. B. & S. L. R. R. Co., 24 N. Y. 269 ; Quinby v. Vanderbilt, 17 N. Y. 315 ; Lock Co. v. R. R. Co., 48 N. H. 339; Noyes v. R. R. Co., 27 Verm. 110; Perkins v. R. R. Co., 47 Mo. 573; Carter v. Peck, 4 Sneed, 203; Mosher v. So. Express Co., 38 Ga. 37.

We do not understand the rule stated above to be controverted in this case; but it is contended for appellant, that there is an express exception from the operation of the rule, embodied in the bill of lading given in this case, and that the railroad company has brought itself within the exception. The doctrine may be regarded as settled, that a common carrier may by contract lessen the stern, if not severe liability, which rested upon him by the rules of the common law. The right, however, must not be so exercised as to be unreasonable in its demands, nor to excuse want of proper care and diligence in the carrier and the agencies he employs. No man can, in such^ service, bargain for immunity from the effects of a want of' that degree of diligence the nature of the service demands^. And to render such limitation of liability available as an excuse, or defense, it must be shown to have been accepted, or ac- <* quiesced in by the consignor. Courts scrutinize such asserted1 exceptions with a watchful eye. — Steele v. Townsend, 37 Ala. 247; S. & N. R. R. Co. v. Henlein, 52 Ala. 606; R. R. Co. v. Man. Co., 16 Wall. 318; R. R. Co. v. Lockwood, 17 Wall. 357; Chouteaux v. Leech, 18 Penn. St. 224; F. & Mech. Bank v. C. Transp. Co., 56 Amer. Dec. 68, and note; Note to Cole v. Goodwin, 32 Amer. Dec. 495 to 507; Hutch, on Car., §§ 240 et seq,; Ang. on Car. §§ 220 et seq.

The facts of this case are substantially as follows : Meyer, the consignor, delivered the goods to the freight agent of the defendant company, at Cullman, one of its shipping stations. They were directed, or consigned, to Bluffton in Indiana, and Meyer pro posed to pre-pay freight for the entire route. The agent was not able to tell him the rate, but accepted as a deposit a sufficient sum of money to pay the freight when the rate should be ascertained. He gave him no bill of lading, but filled up míe of the printed forms, making it complete except the freight rate ; but it was not then delivered to Meyer. The freight agent testified, that “the bill of lading was open before plaintiff at the time” [the time it was filled up], “ and he could have known the contents, if he had desired ;” “could not say plaintiff read the paper.” Its contents were not explained to him. On the next day, the agent, having learned the rate, inserted it in the bill of lading, which he foiwarded, together with tiie surplus of money, to Meyer, at Bluffton, Indiana. The testimony tended to show' the box of goods w'as safely-transported to a point beyond the defendant railroad’s termimis, and that, if lost, it must have been after it had left defendant’s personal custody.

One clause in the bill of lading reads as follows : “ It is-further stipulated and agreed, that in ease of any loss, detriment, or damage done to, or sustained by any of the property ■herein receipted for, during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor, in whose actual custody the same may be at the time of the happening: of such loss, detriment, or damage.” It is contended, that Meyer could and should have read the bill of lading when it was being filled up, and that therefore he must be charged with-a knowledge of its terms, and held to have acquiesced in them. On this theory, several charges were asked and refused. We think this position untenable. Possibly, if contemporaneously with the delivery of the goods to the railroad he had „ received the bill of lading containing such stipulation, he/ would be conclusively presumed to have read it, and to have' acquiesced in it-. — Goetter v. Pickett, 61 Ala. 387 ; Dawson v. Burrus, 73 Ala. 111. And this would have been no hardship, for he would then have had it in his power to reject the terms. Failing to read the contract he was accepting, might be fairly interpreted as an expression of full confidence, and an agree-' ment to accept the terms they would offer. That is not this case. The railroad company, through its agent, agreed to accept, and did accept the freight, knowing it was consigned to a ; point beyond its terminus. It agreed to accept, and did ac-; cept, payment of freight charges for the entire route. These, without more, bound the railroad company, as a common carrier, to deliver the freight at the point of destination. That liability could have been limited by special contract — stipulated terms acquiesced in by the shipper. There is nothing in this record to show that Meyer was informed of any proposed limitation of the carrier’s accustomed liability, nor is any thing shown which cast on him the duty of informing himself. The charges asked were properly refused.

Affirmed.