113 Cal. 329 | Cal. | 1896
Plaintiff brought its action to recover from defendant the value of a carload of blasting powder destroyed while in transit upon defendant’s railroad.
The findings are not attacked. It is claimed, however, that they do not support the judgment. It is also contended that the court erred in admitting in evidence a certain shipping order.
The facts disclosed by the findings are the following: Plaintiff was a manufacturer of powder; its factory was situated at Santa Cruz, California. It had for many
“At the time of the shipment of the powder in controversy, and for several years prior thereto, the plaintiff had always employed one John McNally, who was a common drayman at San Jose, to haul all the powder which the plaintiff had transported to San Jose over the narrow gauge railroad, and which was destined for points on the Southern Pacific or the Atlantic & Pacific, from the narrow guage railroad to the Southern Pacific, and to there ship it for the plaintiff to its destination; the course of business being that the secretary of the plaintiff company at San Francisco, who had charge of the shipping business of the plaintiff, would in the case of each of said shipments write to McNally that the shipment was made from Santa .Cruz, and for him to transfer it to the broad gauge depot, and there ship it to its
“ McNally, on receiving such instructions, would receive the powder from the narrow gauge railroad and haul it upon his drays to the broad gauge depot, and there load it himself into such car or cars as the Southern Pacific agent would designate, and, upon its being loaded, would fill out a shipping order upon printed blank forms furnished by the agent of the Southern Pacific for such purpose; these blank forms were all exactly alike for all kinds of goods.....Upon delivery of such shipping order to the agent of the Southern Pacific filled out and signed, such agent would have the property checked, and, if correct, would ship bill of lading, which would either be delivered to McNally, and by him sent to the company at San Francisco, or Mc-Nally would deliver to the agent an envelope directed to plaintiff company, and the agent would inclose bill of lading in the same and forward it to plaintiff. Each of these methods was pursued indiscriminately. The shipping order was retained by the agent of the railroad company and kept in his office, and neither it nor a copy of it would be delivered to the agent or McNally, but would always be signed in the name of the plaintiff by McNally.”
For several years previous to the shipment in question plaintiff had shipped over the Southern Pacific in this manner a great deal of powder, on an average from one to two or more carloads per month. The defendant never in any way objected to taking the powder, on the ground that it was a dangerous article, and that it was not bound to carry it, nor did the defendant at anytime, in any way, declare to plaintiff or to the said drayman that it would take the powder only as a private carrier. It required McNally in each instance to sign the ship
Defendant's agent at San Jose had no authority to receive the goods except upon the signing of such a shipping order, and such agent would not have received or accepted the goods unless such a shipping order was delivered to him properly signed.
There was, during all of the time, but one rate on powder, and no one could have procured the shipment of any powder over either of said railroads without said: shipping order signed and such bill of lading issued, the agents of both companies' being furnished with but one form of shipping order and one form of bill of lading for all goods and merchandise, and having no authority to receive goods for shipment on any other terms.
The preceding quotations are from the findings which are not attacked. The powder in question was shipped in the manner indicated. It exploded while in transit, in the territory of Arizona, .entirely destroyed the car in which it was placed, partially destroyed two other cars and their contents, and killed two men upon the train. The immediate cause of the explosion is unknown, but it is found that it was occasioned by fire communicated in some way to the powder. It is also found that the defendant was not guilty of any negligence or misbehavior in the matter.
The views which we take, and which will hereafter be expressed, render unnecessary the consideration of many questions ably and elaborately presented by respective
The finding of the court, as above quoted, is to the effect that McNally was the authorized agent of plaintiff, not merely to haul the powder as a common drayman, but “to ship it for the plaintiff to its destination.” The circumstance that he was in fact a common drayman, and that defendant’s agent knew him to be such', does not militate against the force of this declaration. There was nothing inconsistent in the agency to haul as a dray-man, with the agency to ship as representative of the consignor. Any competent person, regardless of his professional or business vocation, might have been employed by plaintiff to ship for it. There is here no question of ostensible agency, or of a failure of defendant to make due inquiry as to the scope of the powers of the agent. The finding expressly declares that Mc-Nally was employed to ship. ■
Nor are the exemptions contained in the contract of the shipping order void for lack of consideration. The defendant was not obliged to receive and transport the powder at all. A common carrier is not bound to receive goods which are so defectively packed that their condition will entail upon the company extra care and extra risk; nor dangerous articles, as nitro-glycerine, dynamite, gunpowder, aqua fortis, oil of vitriol, matches, etc. (3 Wood’s Railway Law, sec. 426; Hutchinson on Carriers, sec. 113; 2 Rorer on Railroads, sec. 1231; Pfister v. Central Pac. R. R. Co., 70 Cal. 169; Railroad Co. v. Lockwood, 17 Wall. 357; Lake Shore etc. R. R. Co. v. Perkins, 25 Mich. 329.) It was thus optional with the defendant to accept the powder for transportation or not; but, if it chose to accept it, it could do so upon such terms, and with such limitation of its common-law liability, as it saw fit. (Piedmont Mfg. Co. v. C. & G. R. R., Co., 19 S. C. 353.) And from the nature of the goods the consideration expressed was sufficient to support the entire contract. ( York Co. v. Central R. R., 3 Wall. 107.)
The term of exemption releasing the carrier from liability for fire from any cause whatsoever will not be
The conclusion having been thus reached that the contract of the shipping order made by plaintiff’s agent, McNally, was authorized, that it was based upon a consideration, and that its terms were reasonable, the other propositions urged, as above stated, are rendered unnecessary of determination.
The judgment appealed from is affirmed.
Temple, J., and McFarland, J., concurred.