Craycroft v. Atchison, Topeka & Santa Fe Railroad , 1885 Mo. App. LEXIS 368 ( 1885 )

Opinion by

Hall, J.

1. The defendant contends that it had the right by contract to relieve itself of the liability imposed upon it as a common carrier by said statute ; and that the acceptance by the plaintiff of the' bill of' lading, limiting the responsibility of defendant as a common carrier to losses occurring on its own line, made a valid and binding contract between plaintiff and defendant. The objections made to this position by the plaintiff’s counsel that where the seller consigns goods to the purchaser the seller has no implied authority to enter into a contract for the purchaser limiting the common law liability of the carrier ; and that the carrier cannot limit even his common law liability by a condition in the bill of lading, unless it is assented to by the owner of the goods, and that such assent will not be presumed from a mere acceptance of the bill of lading ; and that, admitting the right of the carrier to relieve itself of the liability imposed by the statute, it can do so only by an express contract with the shipper, which cannot be implied from the shipper’s accepting a bill of lading containing a condition so relieving the carrier, but the shipper must expressly assent to such condition ; these objections are not well made, in our opinion. “The first of these (objections) is answered by the fact that it • nowhere appears that the agents disclosed their agency when contracting for the transportation of the freight. So far as the defendant could see, they were themselves the owners.” York Company v. Central Railroad, 3 Wall. 113, opinion by Judge Field.

That the power of the agent to bind the owner of the goods by an agreement to limit the carrier’s liability will be presumed; see, also, Hutchinson on Carriers, section 265, and cases thereunder cited.

That the second objection is not the law in this state is now firmly settled. R. R. Co. v. Cleary, 77 Mo. 637; O'Bryan v. Kinney, 74 Mo. 127; Snider v. Adams Express Co., 63 Mo. 377.

It necessarily follows that, if the defendant had the right to relieve itself of the liability imposed upon it by that statute by a contract to that effect with plaintiff, the defendant was so relieved of such liability by the plaintiff’s acceptance, through Ms agent, of the bill of lading containing a condition to that effect.

The question, then, is, could the defendant relieve itself of such liability ?

We can not recognize the force of the defendant’s suggestion that the object of the statute was to introduce into this state the spirit of the English rule by which a carrier, in case freight is booked for a point beyond its line, is liable on a prima facie contract to carry through to the point of destination, and it devolves on the carrier to show a special contract, if such there was, exempting it from liability beyond its own line. The fact that such is the English rule throws no light upon the object of the legislature in the enactment of the statute, or upon the construction to be placed upon the language of the statute,. There is no inference to be made by the courts of this state that our legislature intends to adopt the English rule upon any subject rather than the rule of any other country or state upon the same subject, outside of the common law as recognized by our statute. But," in addition to this, there is one English rule concerning the liability of common' carriers which that statute clearly does not adopt. It is the rule in England, as well as in New York, that a common carrier may relieve itself by contract of liability on account of its own negligence. Hutchinson on Carriers, sections 260-264. Now, prior to the enactment of the statute of 1879, in this state, a common, carrier could not relieve itself of liability on account of its own negligence; and it will not, we apprehend, be contended that that rule of law has been changed or at all modiiied by the statute. It is unquestioned law in this state that a common carrier can not relieve itself in any way of such liability. This is not disputed by the defendant. Snider v. Adams Express Co., 63 Mo. 383, and cases cited. And yet the language of the statute is “ shall be liable for any * * * damage ‘ * * * caused by its own negligence or the negligence of any other common carrier, railroad or transportation company, etc.”

It will not be seriously contended, we presume, that the legislature intended by the statute to adopt the English rule as to the damage caused by the negligence of the common carrier other than the receiving carrier, and, as to the damage caused by the negligence of the receiving carrier, the carrier issuing the bill of lading, to continue in force in Missouri the American rule.

It is certain beyond question that the intention of the legislature as to one damage was the intention as to the other damage. The one damage by the express terms of the statute is placed upon the same footing as the other. They are both fixed upon the receiving carrier as a liability. It cannot be said that the legislature intended to permit the receiving carrier to relieve itself of the one and to prevent it from doing so as to the other. There is nothing in the statute from which such an intention can be presumed. By the statute the damage caused by the negligence of the receiving carrier is fixed upon it absolutely, without any condition or exception. To relieve itself of liability for such damage, even by express contract, such carrier has not the power. Such, too, do we hold to be the effect of the statute as to the damage caused by the negligence of “any other common carrier,” etc. The effect of the statute as to one is the effect of the statute as to the other.

For these reasons we think that the circuit court correctly held that the condition or exception in the bill of lading, relieving the defendant of liability as a common carrier, beyond its own line, was contrary to the provisions of the statute and void.

2. The objection made in this court that the statute of 1879 is unconstitutional for certain reasons, urged in defendant’s brief, we have no jurisdiction todecide. We, therefore, express no opinion whatever upon them.

The judgment of the circuit court is affirmed.

All concur.