Boorman v. American Express Co.

21 Wis. 152 | Wis. | 1866

Dixon, C. J.

The answer of the defendant is a sufficient denial that the violin was carelessly, negligently and wrongfully split and broken as alleged in the complaint, to put the plaintiff upon proof of those allegations, and consequently sufficient to let in the rebutting evidence offered by the defendant. It was error to reject such evidence. An answer denying any knowledge or information sufficient to form a belief as to facts presumed to be within the knowledge of the defendant, or of which he can easily inform himself, is bad ; but such is not the nature of the facts here put in issue. The defendant, the express company, which is no more than a co-partnership doing business under that name, transacts its business through a multitude of agents residing in different parts of the country; and the knowledge of such agents is not for this purpose the knowledge of their principals, the proprietors of the company. Neither can the proprietors readily avail themselves of or acquire the knowledge of their agents. This would be extremely difficult, in the first place, on account of the great number of such agents residing in places remote from each other and from the proprietors themselves; but more especially, because the guilty or negligent agent in every such case is adversely interested. He might evade inquiry, or give false answers. To bold, therefore, that the proprietors must know the facts, or obtain correct information of them, before they can answer to an action, would, in very malny cases, be equivalent to an unqualified denial of justice. We are of opinion that such is not the rule of law, and that the answer in its present form is sufficient.

In deciding this point we way, perhaps, be acting outside of the record. It may be that the business of the company, and the manner in which it is transacted, should have been stated in the answer, and shown at the trial, by way of justifying the form of denial employed; but we assume, as was assumed by counsel at the bar, that this was unnecessary.

The contract embodied in the receipt, if intelligently made, is good in law and binding upon the parties. The court below was of this opinion, but instructed the jury that there was no proof that it was intelligently made, or that the plaintiff knew and assented to its conditions, the burden of which proof, the jury were informed, was upon the defendant. The receipt and contract was shown to have been in the possession of the plaintiff. It was produced by him at the trial, upon notice given by the defendant. We think that the rule of law in such a case is correctly stated in King v. Woodbridge 34 Vt., 571-2, that, the paper being shown into the custody of -the plaintiff, a due and proper delivery of it to him, and his assent to its terms, are to be presumed, and that the burden is thrown on the plaintiff to obviate these presumptions by proof. It is for the plaintiff, then, to show the circumstances under which the paper came into his possession, that he never assented to its terms, and that there was no such delivery of it as to make it operative as a binding contract.

It is to be observed with reference to the conditions of this receipt, that they do not involve the much vexed question as to whether a common carrier can protect himself by contract from liability for losses occurring - through his own negligence or misconduct, or the negligence or misconduct of his own agents or servants. The conditions in question do not purport to guard the express company against liability for losses thus arising. They purport merely to exempt it from liability as insurer ; from losses arising through the default or negligence of any other person, corporation or association to whom the property shall be delivered by the company for the performance of any act or duty in respect thereto, at any point or place off the established routes or lines run by the company; and from liability for any loss or damage of any box or package for over $50, unless the just and true value is stated in the receipt, or upon property not properly packed, or fragile fabrics not so marked upon the package, or fabrics consisting of or contained in glass. All these are conditions which a common carrier may lawfully make; and if assented to by the shipper, we believe there is no conflict of opinion but that they will be binding upon him.

By the Court. — The judgment of the county court is reversed, and a new trial awarded.