Armstrong v. Chicago, Milwaukee & St. Paul Railway Co.

53 Minn. 183 | Minn. | 1893

Dickinson, J.

A former appeal in this action is reported in 45 Minn. 85, (47 N. W. Rep. 459.) Upon a second trial a verdict was rendered for the plaintiff. The defendant appeals from an order refusing a new trial. The nature of the complaint, and the particular ground upon which recovery was sought, are stated in the opinion on the former appeal. The case, as now before us, involves some questions not before presented.

After the plaintiff had introduced his evidence in chief, he voluntarily elected to rest his right to recover on the alleged negligence of the defendant in respect to the care of the horse after it had reached its destination, at Lakefield. It appeared that the plaintiff shipped the horse, with some other horses and various kinds of personal property belonging to him, the whole comprising one car load, from Redding, Ill., and that the final destination was Lake-field, in this state. The transportation was by the Chicago, Santa Fe & California Railroad from Redding to Chicago, and from Chicago to Lakefield it was over this defendant’s road. The plaintiff personally entered into a -written or printed contract with the former road for transportation from Eedding to Chicago, for which the freight named was $14. This contract contained a provision for the transportation, with the car, of a person, in behalf of the owner, to take care of the stock. It contained some provisions in the nature of restrictions upon the liability of the carrier, including one making it a condition precedent to a right of action against the carrier for damages that a claim for damages should be made in writing, within ten days from the time the stock should be removed from the car. This written contract makes no provision for, or allusion to, a shipment beyond Chicago.

The plaintiff sent a man by the name of Hepler with the car, to take care of the property, from Eedding to Lakefield, and gave him money to pay the freight to the latter place. At Chicago, when the ear was transferred to and shipped over the road of this defendant, Hepler assumed, in behalf of the plaintiff, to enter into a formal contract with the company for the transportation to Lakeñeld, and which contained this, among other provisions: “Sixth. That no claim for loss or damages to stock shall be valid unless presented to the company in writing within thirty days after the same shall have occurred.” This contract also recognized Hepler as being in charge of the property, and served as a pass for himself, he not being called upon to pay fare.

When the car reached Lakeñeld, Hepler had not money enough to pay the freight demanded, and for that reason the defendant refused to let him take the property away, and so it remained in the control of the defendant a few days. It is claimed that the horse contracted lung fever during that time, for want of proper care on the part of the defendant, and the horse died of that disease a few days after it was delivered to the plaintiff.

The authority of Hepler to make a contract containing a limitation like that above recited, and the legal effect of such a contract, if authorized, are the important points in this case.

It is contended on the part of the respondent that the sixth clause of the contract above recited is to be construed as referring only to claims for damages on account of some neglect or fault of the defendant in respect to its duties as carrier, as distinguished from those of a warehouseman, after the completion of the transportation, and hence that it is inapplicable to this case. Such a construction cannot be given to the contract under the circumstances here presented. So far as appears, the defendant’s retention of the property after it reached its destination was rightful, because of the nonpayment of its charges for freight, which do not appear to have been more than it had a right to demand. The retention was properly incident to the contract for transportation, as was considered when the case was here before, and there is no good reason why this sixth provision of the contract should be deemed inapplicable for the protection of the carrier in respect to the ordinary and incidental duties of warehouseman, which rested upon it when its duties as a carrier ceased.

If this is to be taken to have been the contract of the plaintiff, the requirement that written notice of any claim for damages should be given within thirty days after the same should have occurred was a reasonable provision, not only for the protection of the carrier against fraudulent claims, but to enable it to ascertain the facts upon which any claim for damages might be founded. A common carrier may, by special contract, thus limit its general liability. Cole v. Western Union Tel. Co., 33 Minn. 227, (22 N. W. Rep. 385;) Lewis v. Great Western Ry. Co., 5 Hurl. & N. 867; Express Co. v. Caldwell, 21 Wall. 264; Jennings v. Grand Trunk Ry. Co., 127 N. Y. 438, 451, (28 N. E. Rep. 394;) Southern Express Co. v. Hunnicutt, 54 Miss. 566; United States Express Co. v. Harris, 51 Ind. 127; Wolf v. Western Union Tel. Co., 62 Pa. St. 83; Glenn v. Southern Express Co., 86 Tenn. 594, (8 S. W. Rep. 152.) The time—thirty days— was reasonable. Cole v. Western Union Tel. Co., supra.

The court so ruled at the trial, but left it for the jury to determine from the evidence whether Hepler had authority to make the contract for the plaintiff. .In view' of the instructions of the court, it is apparent that the jury must have found that Hepler had no authority to make such a contract. It seems to us that the legal effect of the evidence was to conclusively show the contrary.

It is true that the evidence showed, or tendéd to show, that the plaintiff did not expressly authorize Hepler to enter into any contract for transportation, and whatever authority the latter had is only to be inferred from the circumstances of the case, which we have already stated in part. These facts may be said to have been conclusively shown: (1) That the plaintiff shipped the property at Redding for the purpose of having it transported by way of Chicago to Lakefleld, in this state; (2) that he sent the man Hepler with the car, and in charge of the property, who was to go through with it to its destination, and gave to him the money to pay the freight; and (3) that the plaintiff did not personally contract for transportation beyond Chicago, the terminus of the road on which the property was shipped, and with which road, only, did he personally make any contract.' Such being the case, the agent thus placed in charge of the property will be deemed to have had implied authority to make such contract at Chicago for the continued transportation as was necessary and reasonable. For that purpose he represented the owner, and was the only person with whom the carrier from Chicago to Lakefield (this defendant) could deal or contract. Squire v. New-York Cent. R. Co., 98 Mass. 239; Hill v. Boston, H. T. & W. R. Co., 144 Mass. 284, (10 N. E. Rep. 836;) Aldridge v. Great Western Ry. Co., 15 C. B. (N. S.) 582, 599; Nelson v. Hudson River R. Co., 48 N. Y. 498; York Co. v. Central Railroad, 3 Wall. 107; Hutch. Carr. (2d Ed.) §§ 265, 266. See, also, Rawson v. Holland, 59 N. Y. 611; Christenson v. American Express Co., 15 Minn. 270, (Gil. 208.) The case of Squire v. New-York Cent. R. Co., supra, was very similar to that under consideration.

We have said that the plaintiff did not personally contract for the transportation beyond Chicago, although it does appear from his testimony that he agreed with the company on whose road he shipped the property for a through rate of $50 for the car. His formal contract with that company, signed by him and by the company’s agent, was only for transportation to Chicago for the agreed price of $14. It makes no reference to forwarding or to transportation beyond that place; and the plaintiff testified that he “contracted with the Santa Fe line to Chicago, and then he [Hepler] had to ship it over the Milwaukee to Lakefield.” The bare agreement of the plaintiff with the first carrier as to the freight to be paid to the point of destination, considered in connection with the formal contract for transportation to Chicago only, the terminus of that carrier’s line, cannot be regarded as being a complete contract made by the plaintiff for the transportation to the ultimate destination, so as to exclude the inference that the agent sent by him in charge of the property had authority to contract with connecting carriers beyond Chicago. Lamb v. Camden & Amboy R. & T. Co., 46 N. Y. 271; Camden & Amboy R. Co. v. Forsyth, 61 Pa. St. 81; Converse v. Norwich Transportation Co., 33 Conn. 166; Collins v. Bristol & E. Ry. Co., 38 Eng. Law & Eq. 593.

No notice was given of the plaintiff’s claim, in accordance with this provision of the contract, nor was the failure to give notice in any way excused.

For the reasons here stated, we are of tbe opinion tbat tbe case did not justify submitting to the jury tbe question as to Hepler’s authority, and tbat tbe verdict cannot be sustained.

Order reversed.

Vanderburgh, J., being necessarily absent, took , no part in this decision.

(Opinion'published 54 N. W. Rep. 1059.)