53 Colo. 416 | Colo. | 1911
Lead Opinion
delivered the opinion of the court:
Truax, who- signed the shipping contracts-, was in the employ of plaintiffs, and had been for a number of years. He had charge of the shipment' and superintended the loading. Authority to deliver stock to a common carrier for shipment includes all the necessary and usual means of carrying it into-effect, so that the agent of the owner entrusted with its shipment, in the absence of notice to the carrier to the contrary, will be presumed to have authority to bind the shipper by a contract of shipment, in so far as such contract is valid. — Nelson v. Hudson River R. R. Co., 48 N. Y. 498; Hill v. Boston, H. T. & W. R. Co., 144 Mass. 284.
The evident purpose of the testimony of Truax with respect to the circumstances under which he signed the shipping contracts was to relieve the plaintiffs from the terms and conditions thereby imposed. It is not charged by any pleading on the part of plaintiffs that the defendant company was guilty of any fraud, duress or bad faith in obtaining these contracts,
A mere denial of the execution of the contracts was not sufficient to make an issue on either one of these questions; consequent^, the testimony referred to was not competent.
But, aside from this conclusion, the testimony of T'ruax to the effect that he was told by the agent that he had tO' sign; that the contract was his pass; that he did not read, nor was he asked to read, the contracts, does not establish either mistake, fraud or duress. To hold that from these circumstances he was induced to sign contracts by fraud, or duress, or that from his sixteen 3'ears’ experience in handling cattle on railroads, he did not know what he was signing when he signed the contracts, would attribute' to him a lack of intelligence wholly at variance with the intellectual abilit3r which his examination as a witness disclosed he possessed.
In this connection it is also proper to1 note, that one of the plaintiffs was present when the cattle were loaded. He was the manager of the partnership business. For a period of fifteen or eighteen years he had been engaged in shipping between three and five thousand cattle annually from Arizona to Denver. With this experience it must be presumed he knew that Truax, the agent of the partnership, would be required to sign contracts for the shipment of which he was in charge.
Plaintiffs admit, by their replication, that they did not give written notice of any claim for damages before the cattle were removed from the place of delivery. The record discloses that whatever cause of action plaintiffs had against the defendant accrued August 21st, 1901. Their action was not commenced until July 3rd, 1903. The next question to consider, then, is, whether or not the stipulations in the contracts, requiring written notice to be given of a claim for damages, before the cattle were removed from the place of delivery, and that suit for any claim for damages must be brought within six
Such stipulations, in brief, are upheld upon the theory that they are not opposed to public policy; that they are reasonable, and do not in any manner exempt the common carrier from negligence; but are conditions of recovery, and not exemptions from liability, which the carrier may lawfully include in its contract of shipment for the purpose of protecting it against fictitious and unfounded claims for damages.
The time fixed by the contracts within which an action should be brought appears to be reasonable, and as plaintiffs
Plaintiffs have not complied with this rule by the averment of any facts excusing their failure to give the written notice required, or to bring their action within the period fixed by the contract of carriage either in their complaint or replication.
Several other questions have been argued by the respective counsel, which we do not deem it necessary to consider.
The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with the views herein expressed. On proper application, either of -the parties should be permitted to amend their pleadings as they may be advised. Reversed and Remanded.
Decision en banc.
Dissenting Opinion
dissenting:
I dissent from the opinion of the court in this case. Aside from the question whether a railroad company can, in any manner, by private contract, restrict, limit, or forefend its liability for injuries occasioned by the direct violation of law, there exists, the further question whether there was any contract as claimed by the company. The record discloses to- me the following facts about this matter. Over the objections of the plaintiffs, that the same was immaterial and irrelevant, and that the execution thereof by plaintiffs had not been shown, the two alleged contracts, which I will call Contract No. 178 and Contract No. 179, were submitted to the court, and it is upon these contracts that the defense, and the judgment announced by the majority of this court are based. Contract No. 178, as set forth in the abstract, purports to be a contract made by W. O. Howe as shipper. It purports to be signed by the railroad company and by W. O'. Howe. The so-called release is not signed at all. Contract No. 179 purports that the Wabash Cattle Company is. the shipper and is signed “Wabash ■Cattle Co., Shipper, by W. O'. Howe, Agent.” The release is signed “A. T. Truax; W. Ii. Harper.” There is absolutely no evidence in the abstract as to who W. O'. Howe was, or that he ever signed either of the contracts in any capacity, or .that he was there. His name is not mentioned. For aught that appears, the name of W. O. Howe, wherever it appears, in or on the contract, majr have been written by the railroad agent. The only evidence concerning the signing of either of these contracts appearing in the abstract, was given hy A. L. Truax, who accompanied the shipment, and is as follows:
“Before I left Flolbrook, I remember signing papers supposed to be a contract; W. H. Harper did not come with me with these cattle; there was some one, but it was not W. H. Harpef.
Q. Did jfou-sign your name on the back of the contract? A. I don’t remember where I signed it, but I signed my name where the agent told me to sign it.
The agent told me I had to sign the contract, that it was my pass over the road; I didn’t read it; the agent didn’t ask me to read it.”
These contracts were set out, and their execution and the fact that the shipments were made under them were alleged in the answer. The replication denied the allegations of the answer. These contracts limited the common law liability of the carrier, and, if binding, in any event the burden of proving them rested upon the company. — Coats v. C. R. I. & P. Ry. Co., 134 Ill. App. 217; M. K. & T. Ry. Co. v. Carter, 29 S. W. 565.
.Free passage was granted by these contracts to the person or persons accompanying the shipment, and a contract was endorsed on the back relative to this transportation. There was also what was designated as “drover’s return pass.” The railroad agent represented that the one contract signed by Truax (Contract'No. 179) was his pass over the road. He did not. represent that it was a long- contract, limiting, in many particulars, the common law liability of the carrier. It was under the representations made by the agent, who stood in the place of the railroad company itself, that this, contract was at all signed by Truax. It is too plain to require the citation of authorities that a contract executed under such circumstances is not a contract, nor binding- upon a shipper. The only place that Truax’s name appears is on the release. Otherwise the contract appears to be executed by the Wabash Cattle Company, by W. O'. Howe, agent, and Truax’s name was obtained only by a misrepresentation of what the paper was. (See So. Pacific Co. v. Anderson, 63 S. W. 1023.)
Under these circumstances, the court below was correct in disregarding the alleged contracts entirely, and the judgment should be affirmed.
I am authorized to say that Mr. Justice Hill concurs with me.