Oregon Short Line Railway Co. v. Blyth , 19 Wyo. 410 ( 1911 )

Beard, Chief Justice.

This action was brought by the defendant in error, Charles P. Blyth, against the plaintiff in error, The Oregon Short Line Railway Company, a corporation, "to recover the value of two barrels of china ware which he alleged had been lost in shipment. The case was tried to the court without a jury, and judgment rendered in favor of the plaintiff below for $289.50, the value of the goods as found by the court.' The railway company brings error.

The plaintiff alleged in his petition, after alleging that defendant was a' common carrier from Salt Lake City, Utah, to Evánston,' Wyoming, that “The plaintiff on the 20th'day of'August, 1907, delivered to the defendant, and the defendant received as such common carrier, certain goods and property of the plaintiff, namely, two (2) barrels of chinaware, containing also' ^ doz. pairs socks, 1 pair spurs, 1 pair putts, 1 razor, 1 strop, 1 brush and mug, of the value of two hundred and eighty-nine arid 50/100 dollars, to be by the defendant taken care of and safely and secu'rely carried from Salt Lake City, Utah; to Evanston aforesaid, and there delivered within a réasonable time in that behalf and for a reasonable reward paid by plaintiff to defendant. That reasonable time for carrying the said goods hás elapsed. The defendant has not taken care of or safely or securely carried the said goods from' Salt Lake City,' Utah, to Evanston, Wyoming, aforesaid; or there delivered the same- to plaintiff as aforesaid, whereby the said goods have been lost to' the plaintiff, to the plaintiff's damage in the sum of two hundred and eighty-nine aiU 50/100 dollars.” The defendant answered, that at the time of the delivery of said'goods to the company for shipment, the shipper entered into a written contract on behalf of the plaintiff, containing the terms and conditions on which the defendant' undertook, to transport the property, one of which was as follows: “Release. I hereby certify that I desire to receive the benefit of any lower rate provided for freight conditional upon carrier being released,' or at owner’s risk; and in consideration of such lower rate being applied on the within named shipment, I assume all risks necessary to receive such'benefit; It - is also'hereby agreed that the value of the property does not exceed $5.00 per cwt.

“August 20th, 1907.

“(Signed) Rsdman Van & Storage;/'

■ That the shipper knew at the time that a higher rate was required for property of greater value than five dollars per hundred weight. That the defendant relying on the statement and agreement of the shipper that the property was of the value of five dollars per hundred weight and no more, and that the risk incurred in case of accident would be only five dollars per hundred weight, accepted said property for shipment upon said valuation, and at a rate based thereon. That plaintiff was estopped to claim that the property was of greater value than five dollars per hundred pounds and that the weight of the two barrels was four hundred pounds; and it offered to confess judgment for $20.00 and costs of suit.

Tor reply, plaintiff denied the allegations with respect to the contract, and averred that no one had authority to make any contract binding his property.

Two questions are presented in the case. 1. Did the storage company have authority to make the contract? 2. If so, was the contract valid?

The two barrels of chinaware not delivered were a part of- a shipment of the household goods of plaintiff, and it appears that he left all of them in a house he had been occupying in Salt Lake City and directed the Redman Van & Storage Company to pack and ship them to him at Evans-ton. He gave the storage company no directions as to how they were to be shipped, and nothing was said by him about freight rates. The business of the storage company was storage, packing, shipping and moving. The release above set out was printed on the back of the bill of lading,' and the bill was made out and the release signed in the name of the company at its office in Salt Lake City and delivered to the railroad company with the goods. The bill of lading was made out and the release signed in the name of the company by its clerk, who testified that that was a part of his duties, that he had authority from the storage company to sign it, and that the release was signed for the purpose of securing the lower freight rate. The authority of the clerk to sign the release for the storage company is, we think, established by the evidence. It is not contended by counsel for defendant in error that the storage company was not the agent of Mr. Blyth for the shipment of these goods; and in fact no such contention could be sustained under the evidence. In such case, where the owner of goods directs his agent to ship the same without further directions or restrictions, the law implies authority in the agent to make a reasonable contract with the carrier limiting the carrier’s liability; and if such contract is lawful the principal is bound thereby. The rule is stated in 5 A. & E. Enc. Law, 305, thus: “A consignor who sends goods to the depot of a carrier, for shipment, by an agent, impliedly authorizes such agent to make a special contract with the carrier as to the carriage of the goods, and the acceptance by such agent of a receipt or bill of lading, containing limitations upon the liability of the carrier, will bind his principal.” And • in 6 Cyc. 408: “One who has authority to ship goods for another has thereby implied authority to make a contract for their shipment involving a limitation of the carrier’s liability.” The rule is also stated in 1 Hutchinson on Carriers, (3rd Ed.) Section 457, as follows: “If the owner of the goods entrusts them to another for the purpose of having them delivered to the carrier for transportation, the person to whom they are so entrusted will be presumed to have authority to agree with the carrier upon the terms of shipment; and this authority will include the right to enter into -a reasonable agreement on behalf of the owner restricting the carrier’s liability as an insurer. And where the carrier is without knowledge that the person to whom the goods are so intrusted has no authority to enter into a contract restricting the carrier’s .common law liability, the mere acceptance by the-.latter of the carrier’s receipt will operate to bind the owner of the goods to its lawful limitations.” The rule of law as stated in the texts above quoted is sustained by the numerous cases cited in the foot notes thereto, and need not be repeated here. The case at bar does not rest upon the mere acceptance of a receipt delivered by the carrier to the agent of the shipper, containing the limitations, but upon the written contract signed by the agent of the owner and delivered to the carrier with the goods. Such being the facts in the case, the principal was bound by the act of the agent, and the first question must be answered in the affirmative.

2. Was the contract valid? In discussing this question we must keep in mind the dual nature of the liability of a common carrier, and the distinction between its liability and that of an ordinary bailee for hire at the common law. Both are liable for loss occurring through their negligence or that of their servants or agents; and in addition to this the common carrier is also liable for loss or damage occurring from other causes, such as fire, robbery or accident not attributable to negligence of the carrier; excepting, of course, loss by the act of God, or of the public enemies, etc., which are well understood. The common carrier occupies a position in the nature of an insurer and his' liability, other than for negligence, is so spoken of and treated in the books; and it is with such liability, under the pleadings in this case, that we are to treat. That we may not be misunderstood we have set out the language of the petition, from which it clearly appears that the' action is based on contract and not in tort. It contains no averment, even in' the most general terms, of- negligence on the part of the carrier; nor does the reply contain any such charge. The question of negligence, therefore, is not in the case and will not be considered. • It is well settled that a carrier may, by special contract fairly made, and- entered into understandingly, and which is reasonable, limit his common law liability as an insurer. Counsel for defendant in error conceded that to be the law in the following language in his brief: “Whatever doubts may.at any.time have.been entertained, it is now well settled that by- special contract the carrier may limit or qualify the liability resting-on him as an insurer or his common law liability — as it is most often expressed.” In 1 Hutchinson on Carriers, (3rd Ed.) Sec. 418, the author says: “The extent to which the carrier may exonerate himself from responsibility by such express or special agreements, where permitted, is, subject to the exceptions to be hereafter considered, almost unlimited. He cannot, of course, exonerate himself from the consequences of the fraud or felony of either himself or of his servants, though, as we have seen, it was formerly otherwise in England as to the felony of his servants; and, as will be hereafter seen, according to the weight of authority in this country, based upon considerations of public policy, he cannot contract for exemption from liability for losses caused by his own or the negligence of his servants. But, with these exceptions, there is no danger or risk which can arise in the course of the transportation of the goods, or of his connection with them, for which he cannot avoid responsibility by a contract fairly and understanding^ made with his employer, upon the theory that the owner of the goods, for the consideration which it is° supposed he receives, either in the reduced compensation or in some equivalent advantage, may surrender, if he will, the obligation of the carrier as an insurer, to any extent he may choose.” This rule of law is so well established and recognized that the further citation of' authorities would be superfluous. That the contract in this ■ case was fairly and understandingly made there can be no doubt from the evidence. It was signed by the agent of the shipper and delivered with the goods to the carrier, and on its .face shows that it was made for the purpose of securing a lower rate of freight than would otherwise have been required, and it was in consideration of such lower rate that the shipper released the carrier from its liability as insurer to the extent stated in the agreement. It also appears that the agent of the shipper understood that he had the option to choose between the higher rate binding the carriers as an insurer, and the lower rate which thé carrier accepted in consideration of the limited liability. The validity of the contract is not questioned in the pleadings either by allegation that it was without consideration, or unreasonable for any cause. But .the argument is that the carrier cannot by contract relieve himself from liability for loss resulting from his negligence. That may be conceded and we think the better reasoning and weight of authority is to that effect; but that question is not presented in this case. There being no allegation of negligence in either the petition or reply, it cannot be presumed that the loss was the result of negligence of the carrier. . The plaintiff proceeded on the theory that there was no contract limiting the carrier’s liability and that, therefore, to be entitled to recover, all he had to do was to allege and prove the delivery of the goods to the common carrier and that it had failed to deliver them at the place of destination. There was no evidence showing the cause of failure to deliver. But, as we have seen, the goods were shipped under the terms of a special contract exempting the' carrier from liability for loss in transportation not the result of its negligence; and loss by mere proof of failure to deliver in such case, in the absence of any allegation of negligence will not be attributed to a wrongful act when it can as well be attributed to other causes. In other words, the plaintiff in his pleadings in effect admits 'that the failure to deliver the 'goods was not on account of any negligence of the carrier, but because of its failure to perform its contract as an insurer. In that state'of the pleadings, the special contract exempting the carrier from its liability as insurer being proven, the carrier was not called upon to introduce evidence to show that the cause of the loss came within the exemption and without negligence. The case does not come within the rule, sustained by many courts, that where a special contract limiting his liability is set up by the carrier, the burden rests on him to show that the loss was occasioned by the excepted cause, and that there was no negligence on his part. That rule, where sustained, is applicable in cases where negligence is alleged; and it has been held in such cases that proof of non-delivery was prima facie evidence of negligence which the carrier was required to rebut. But where there is no issue of negligence, evidence tending to show it would be irrelevant. The case of Lancaster Mills v. Merchants’ Cotton Press Co. et al., 89 Tenn. 1, was an action to recover damages for the loss of cotton by fire, the cotton being shipped under a contract exempting the carrier from liability for loss on that account. The court said: “This exemption would, however, be invalid as a protection against a loss by fire the result of the negligence of the carrier qr its agent for compression. The bill fails to charge that the loss was due to any want of care, either upon the part of the carrier or of any of its agents or servants. Where, therefore, the pleadings show a valid stipulation for exemption from loss or damage by fire, and it is further shown that the failure of the carrier to safely carry and deliver was due to a loss by fire, no case is made against the carrier unless the fire be charged to have been the result of negligence. The burden of proof, when the loss is thus admitted to have been by fire, is upon the owner to prove negligence, and under plainest rules of pleading the plaintiff ought to allege in his pleading every fact necessary to-fix liability.” In Larsen v. O. S. L. R. Co., (Utah) no Pac. 983, the pleadings were almost identical with those in this case, except, in the plaintiff’s reply it was alleged that the. agreement set up in the answer was “without consideration, unfair, unreasonable, and unlawful, and fraudulent, and against public'policy.” The court said: “The question whether contracts like the one passed on are enforceable in cases where the property is lost through the negligence or misconduct of the carrier or its agents is not involved, and hence is not passed on.” In Wells v. Great Northern Ry. Co., (Ore.) 114 Pac. 92, the action was brought to recover the value of a trunk and contents, lost by the derailing and burning of a baggage car alleged to have been caused by the negligence of the defendant. The court said: “When in such an action the complaint sets forth the facts constituting the negligent act or omission, discloses, in logical sequence, the facts composing the secondary agency, force or obstacle, if any, and details the resultant injury and the damages, the pleading is sufficient. In the case at bar, the complaint 'does not conform to these requirements, but, as the burden of proof rested on the defendant, a suggestion of negligence in plaintiff’s primary pleading was, in our opinion, adequate for that purpose.” In the present case there is neither a statement of the acts constituting negligence nor a suggestion of negligence. We have said this much in an endeavor to show the distinction between contracts limiting the liability of a common carrier as an insurer, and those attempting to relieve him from liability for negligence ; and for the further purpose of showing the necessity of pleading negligence if it is relied upon to avoid the contract. In this case, there being no allegation in the pleadings that the contract was unreasonable or that the failure of the carrier to deliver the goods at destination was the result of negligence of the carrier, the contract must be held to be valid. The record does not disclose the basis of the decision of the district court, whether it was of the opinion that the plaintiff was not bound by the contract signed by the storage company, or was of the opinion that the contract was invalid. In either case we think it erred, and for that reason the judgment must he reversed and the case remanded for further proceedings.

Reversed.

Potter, J., concurs. Scott, J., was not present at the oral argument, but participated in the consideration of the case and concurs in the decision.