99 P. 1072 | Utah | 1909
(after stating the facts as above).
The first assignment of error is predicated upon an order made during the progress of the trial permitting respondent to amend her -complaint. Some of the goods over which this controversy arose were described in the complaint as “two bundles of carpet and one box of household goods.” Despondent offered evidence tending to- show the- kind and value of the various articles contained in the box, also to prove that various articles of household goods were wrapped up in the
The next question' presented by the assignments of error is: Was appellant liable for the market value of the goods as shown by the evidence, or was its liability limited to the value as fixed by the alleged release? It is settled by -the great weight of authority that a common carrier, in the absence of statutory regulation to the contrary, may by
“The rule is well settled that a stipulation restricting the liability of a common carrier in any particular is of no binding force until it receives the assent, express or implied, of the shipper. Such a provision derives no strength merely from its insertion in a bill of lading. Until the consent of the consignor has given to it the effect of a contractual obligation, it can no more affect the rights of the .parties to the contract of carriage than can any other ex parte action by the carrier.”
Appellant insists that respondent having employed Oes-chili, a drayman, to pack the goods in question and deliver them at the depot for shipment, she thereby made him her agent, and that notice to Oeschili of the stipulation
“The cartman was not authorized to make this contract. He was merely the servant of the consignors to deliver this box to the railroad, and was clothed with no discretion to act for them. No authority could he implied from his character and business, and his principals were near at hand, where they could he consulted, arid they could act for themselves. But he assumed to act for them and to do what they were authorized to do. They were notified of all the facts, and the contract made hy him for them, was delivered to them. They were informed that, if they had any objection to the contract made hy their assumed agent, they should notify the defendant the next day: They made no objection, and expressed no dissatisfaction With the contract, leaving the defendant’s agent to suppose that it was satisfactory to them. It seems to me that these facts constitute a most emphatic and unequivocal, ratification of the contract.” (The emphasis is ours.)
In the case of Seller v. Steamship Pacific, 1 Ore. 409, Fed. Cas. No. 12644, a question involving this same principle was before the court, and in the course of the opinion it is said:
*248 “The drayman, Beeson, was a mere bailee for hire, to take goods to the wharf and deposit them in the charge of the ship. Such employment of itself gave him no authority to make any contract for .the shipper, or to assent to any proposition on the part of the carrier to qualify his liability.”
Likewise in the case of Russell v. Erie R. Co., supra, after citing with approval the foregoing decisions, the court, speaking through Justice Vroom, says that it is “clearly of opinion that no authority was disclosed' which would warrant the making of any contract by the cartman which would limit the liability of the railroad company as common; carriers.” We do not wish to be understood as holding that a drayman may not, under some circumstances, where express authority is not given him, make a fair and reasonable contract of this kind which will be binding upon the shipper. Where^ for example, a shipper has been in the habit of employing a certain drayman to deliver freight at shipping points for transportation, and the drayman, with the knowledge and tacit approval of the shipper, has been accustomed to make all necessary arrangements with the carrier for the transportation of the freight, it might well be said that under such circumstances a just and reasonable contract entered into' between the dray-man and carrier limiting the latter’s liability would be binding upon the shipper.
The contention is also made that respondent was limited in her proof to the goods as described in the bill of lading, and that it was error to admit evidence of the articles wrapped up in the two “bundles of carpet,” for the reason that “the railroad company had no notice or knowledge that the plaintiff had' packed or intended to: ship articles of a different description, quality, class, or designation than those named in the bill of lading,” and that it cannot be held to answer for articles of which it had no- knowledge. These goods were received and shipped by appellant as one lot. That is, they were all included in one consignment and shipped together as household goods under one rate. This clearly appears from the release or special contract hereinbefore mentioned. No claim is made that any of the goods shipped were improperly listed
The judgment is affirmed. Costs to respondent.